Urgent hearing refused to grant hearing does not mean refusal to hear the matter at all: High Court of Bombay at Nagpur

There is a difference between refusal to hear a matter on a particular date and refusal to hear the matter at all. A division judge bench comprising of Justice Sunil B. Shukre and Justice Anil S. Kilor in the matter of ARUNA DTS MOORTHY WD/O LATE DTS MOORTHY AND ANOTHER v. UCO BANK, MID CORPORATE BRANCH, NAGPUR(WRIT PETITION NO. 2653 OF 2021)dealt with the issue of whether to allow the present writ petition or not.

In the present case, a writ petition has been filed against the notice issued u/s-32 of the SARFAESI Act, where 2 mortgaged properties creating security interest in favour of respondent towards repayment of loan granted to petitioner have been put on auction sale. The Petitioners on 26.07.2021 have challenged the said notice by filed an application u/s- 17 of the SARFAESI Act before the Debt Recovery Tribunal.

According to the notice the petitioners has to pay the outstanding dues amounting to Rs.5,87,10,380.23/- together with applicable interest and costs within 15 days on receipt of the notice, failing which, the notice further informs, the Bank would be constrained to sell the secured assets mentioned in the notice i.e. apartment bearing No.106, ‘Nirman Enclave’, situated at Gajanan Nagar, Ajani, Nagpur and the other is office/chamber No.301, 3rd floor, ‘Lotus Plaza’ situated at Gokulpeth Layout, Gokulpeth, Nagpur, for realisation of the dues.  As per the notice, the petitioners did not pay the outstanding dues as demanded in this notice within the stipulated period of 15 days. It also appears that the petitioners did not question this notice for its validity immediately after its receipt and almost about 25 days thereafter, chose to knock at the doors of Debts Recovery Tribunal, the Tribunal competent to hear the application under Section 17 of the SARFAESI Act on 26.07.2021. The Petitioners have made a request for urgent hearing on the application through video conference on 28.07.2021. But, the request was rejected on the ground that the petitioners approached the Tribunal at the last moment and time of four days had not elapsed since the physical filing of the application under Section 17 by the petitioners.

The Petitioners contended that in spite of having a right of hearing, are not being heard by the Debts Recovery Tribunal, the only forum available for redressal of grievances arising from the measures taken under Section 13 of the SARFAESI Act and which has affected the fundamental rights of the petitioner.

The court found that the urgent hearing has not been refused by the DRT Nagpur rather the DRT Nagpur has refused to grant hearing on 28.07.2021. There is a difference between refusal to hear a matter on a particular date and refusal to hear the matter at all. “Considering the facts and circumstances of the case, that in this particular case, the Registrar of the Debts Recovery Tribunal, instead of taking a decision himself, ought to have placed the request for urgent hearing before the Presiding Officer of the Debts Recovery Tribunal and allowed the Presiding Officer to take appropriate decision in the matter. These facts and circumstances indicated that there was urgency pleaded and so the need of the situation was to let the Presiding Officer take a suitable decision. The urgency of the matter had arisen from the auction sale that was scheduled to be held on 28.07.2021 between 01.00 pm. to 05.00 pm. If this auction sale was to go ahead and finalization of the sale of the properties in the auction had indeed taken place, it would have resulted into adversely affecting the rights of the petitioners even without hearing the petitioners and the further consequence would have been of another grievance of violation of principles of natural justice.” Also,” opportunity of hearing is an integral part of our constitutional philosophy and it is well embedded in Articles 14 and 21 of the Constitution of India. Urgency of hearing is of course determined by the facts and circumstances of a particular case. Therefore, it becomes necessary for a competent judicial authority to judiciously apply its mind to the facts and circumstances of each case to determine as to whether or not there is any case for urgent hearing made out by the parties. Such authority is also required to take into consideration the consequences that may ensue if such hearing is denied to the party.”

Hence the writ petition is allowed

Click here for the Judgement

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