The High Court relied on the decisions of the Supreme Court in State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85; Agarwal Tracom (P) Ltd. v. Punjab National Bank, (2018) 1 SCC 626 and ICICI Bank Ltd. v. Umajanta Mohapatra, 2018 Online SCC SC 2349, requesting a declaration that this application cannot be granted. It appears from the cited cases that aggrieved parties could not directly challenge the procedure under the Securitization and Recovery of Financial Assets and Enforcement of Security Act 2002 (SARFAESI) by submitting a written request under article 226 of the Constitution without exhausting the remedies available to them. Accordingly, the court stated: “Since the plaintiff did not challenge the certificate of sale before the collection court under section 17 of the SARFAESI Act, the application cannot be considered. The head of claim was therefore dismissed.
[Rajagopal v. Raji, 2019 SCC OnLine Mad 733, dated 2019-03-11] Supreme Court: In considering a case under the Gujarat Stamp Act 1958, the Chamber of Justices Hemant Gupta and V. Ramasubramanian* concluded that once a single instrument is duly determined by the Statute, namely section 20(a), the IRS cannot split the instrument into two. because of the reduction in stamp duty facilitated by a communication from the Government under Article 9(a). In the present case, the consideration paid by the applicant to OBC was intended to acquire the financial assets relating to a particular borrower. The draft programme of action, which is contained in appendix 3 to the deed of assignment, was only incidental to the deed of assignment. The assignment tool has already been made mandatory under Article 20(a), which deals with “transfer”. Article 45(f) also requires that an action programme referred to in that provision be subject to stamp duty pursuant to Article 20. The Respondent argued that the Appellant had not presented a prima facie case and that the Tribunal had dismissed the original application (Arb) on the basis that the essential facts had been concealed by the Appellant. As regards the physical possession of the land, the defendant had already asked another chamber of that court to request freedom to be reserved with it for the sale of the land in order to settle its debts. The respondent objected to the request to refer the case to the lower court, arguing that a sole arbitrator had already been appointed after the order under appeal had been made and that there was a legal obstacle under section 9(3) of the Arbitration and Conciliation Act 1996 (“the Act”) which prevented the lower court from granting an interim measure.
The High Court referred to section 9 of the Code of Criminal Procedure (the courts hear all applications except for exclusion) and held that the Civil Court should hear all actions of a civil nature, with the exception of actions expressly or implicitly excluded under the provisions of certain laws. Therefore, the court read section 8 of the A&C Act (Power to refer parties to arbitration where an arbitration agreement exists). Referring to the decision in P. Anand Gajapathi Raju v. P.V.G. Raju, 2000 (4) SCC 539 and Ameet Lalchand Shah v. Rishabh Enterprises, 2018 SCC OnLine SC 487, the Court stated: “An interpretation of Article 8 would make it clear that the role of the judicial authority in referring the parties to arbitration arises only when a request is made by a party to the arbitration agreement or a person, who asserts claims under or through him. This window is granted only to allow a respondent who does not wish the dispute to be resolved by arbitration to waive his or her right to submit the dispute to arbitration.
Therefore, it is very clear from reading the foregoing that a judicial authority cannot refer/reject a claim on the ground that the parties to the complaint have agreed to submit all their disputes to arbitration at the threshold where the case is filed. It was further stated that under the A&C Act, there was no complete shift in the jurisdiction of the civil courts, unlike cases arising from the SARFAESI Act, the Motor Vehicle Act, etc. Accordingly, the complaint was settled by requesting the District of Munsif to immediately number the claim if the claimant resubmitted the returned documents with copies of the orders. [Convinio Shopping Nine 2 Nine v. Olympia Opaline Owners Assn., 2019 SCC OnLine Mad 646, Order Date 04-03-2019] According to the facts of the case, the applicant took out a loan of Rs 9 lakh from the defendant bank and defaulted due to financial problems. Subsequently, the defendant bank initiated proceedings under the SARFAESI Act. The Grievor stated that, despite his best efforts, he was unable to repay the loan due to his financial difficulties. He therefore applied to the High Court to order the defendant bank to receive the amount of the outstanding loan in instalments. It was also established that the new auction took place later, that the property had been sold and that the defendant bank had not claimed that a lower amount had been received at the subsequent sale; The board was of the opinion that the defendant bank had not suffered any damage. The Supreme Court explained the interaction between tenancy law and debt collection and ruled that protection from collection proceedings under ..
The High Court also relied on the Supreme Court`s decision in Gajraj Jain v. State of Bihar (Gajraj Jain) (4), although the advance payment was made by the buyer of the auction at an auction under the State Finance Corporation Act, the Supreme Court still ruled that the mortgagee was entitled to repayment since the transfer had not been executed, and there is no derogation from the general principle of mortgage repayment, even in the case of special laws. The Chamber found that the Appellant was the case, that he was a tenant of the secured property and that he had paid the rent in advance. The High Court held that the application for securitisation made against the measures taken pursuant to Article 13(4) of the SARFAESI Act was time-barred after 52 days. DRT`s jurisdiction under Article 5 of the limitation period has not been challenged and should not have been harsh in not tolerating delay in accordance with the principles set out in Esha Bhattacharjee. Consequently, the contested decision was annulled and the Chandigarh DRT (II) was ordered to rule on the merits. [Ajmer Enterprises v Debt Recovery Tribunal, 2019 SCC OnLine P&H 4, decision rendered 04-01-2019] In the present case, the complainant purchased scrap metal and machinery from the defendant company under the Memorandum of Understanding of 31.01.2017.
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