TaxTMI 
TaxTMI 
2024 (12) TMI 1461
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....y one-sided, drafted on the grossly erroneous premise that the right to relief, nay, remedies, arise only at the hands of a banker as against the borrower and that the enquiry to be conducted is wholly one-sided, or in the alternative to declare that the borrower's right to be an actor/Petitioner for the enforcement of his remedies has to be read into the said Acts; b. To declare that Section 34 of the RDB Act, and Section 34 of the SARFAESI Act and Section 63 of the IBC which bar the jurisdiction of the Civil Court to entertain and adjudicate the Petitioner's/borrower's plea against the Respondent Bank nay, bank/financial institution, is unconstitutional and void inasmuch as the Petitioners, victims of the gross breach of contract, culpable negligence, malicious and tortious action, so too, violation of the express statutory provisions at the hands of the Respondent Bank, are entitled to institute an action/Petition as against the Respondent Bank for the enforcement of the Petitioners' right as against them; c. To declare that the Petitioner being an MSME within the meaning of Sections 7 and 8 of the MSMED Act of 2006, it is entitled to the benefi....
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....st, culpable negligence, and malicious and tortious action at the hands of the Bank, financial institution and its officers, which loss and injury far exceeds the very claim of the Bank as against the Petitioners and therefore, no amount is due to the Respondents by the Petitioner and further that the Respondents have no enforceable rights as against the Petitioner; g. To declare that the guidelines and notifications issued by the Reserve Bank of India from time to time empowering the bank and financial institutions to declare a borrower as a willful defaulter is without authority of law, for such a declaration amounts to a civil death and further that the Petitioners, nay, a borrower is not liable to be declared as a willful defaulter except by the authority of an Act of Parliament or statutory instrument having the force of law; h. To declare that the failure on the part of the Central Government/RBI to implement the MSMED notification dated 29.5.2015, in particular, to ensure that the Board of Directors of the Banks/financial institutions in this country, including the Respondent Bank, constitutes a committed for 'stressed micro, small and medium enterprise....
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.... in accordance with the said notification and such other relevant notifications/regulations framed by the RBI; m. To grant a perpetual mandatory injunction directing Respondents to put the clock back in respect of the entire action initiated under the SARFAESI Act, in particular, cancel the sale notice dated 22.7.2024, putting the Petitioner's properties to sale and further to make attempts to revive the Petitioner's business as mandated by the notification dated 29.5.2015; n. To issue a Writ in the nature of Prohibition restraining and prohibiting the CIBIL and NeSL from acting upon the classification of the Petitioners account as NPA by the Respondent Bank and if they have already done so to put the clock back by undoing the acts or steps, if any already taken against the petitioner; o. Pass such further and other orders, as the nature circumstances of the case may require; p. Issue a writ, order, or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case. q. Award the cost of the petition to the petitioner." 3. At the very outset, a preliminary objection has been raised ....
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.... petitioners, interference claimed in the present petition is declined. Merit issues may be contested in statutory proceedings. 5. Accordingly, the writ petition stands dismissed." 4. It has thus been submitted, all grounds of challenge being raised now were available to the petitioners at the earlier stage. Though the petitioner was granted time in view of the circumstance noted in the earlier order dated 12.08.2024, the petitioner has illegally continued to hold possession over the secured asset, till today. 5. The above objection has been met on the legal premised that challenge raised to the validity of the laws may not be thrown out at the first instance, on that technical objection. 6. Without ruling on the preliminary objection, at present, we consider it appropriate to issue notice to the learned Attorney General of India with respect to the challenge raised to the parliamentary laws. 7. All respondents may file counter affidavit within a period of six weeks. Petitioner shall have two weeks thereafter to file rejoinder affidavit. 8. List this case in the week commencing 13.01.2025, showing the name of Sri Sanjay Kumar Gu....
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....the MSMEs to banks/financial institutions, nay, even operational creditors, shall lie against the Petitioner under the SARFAESI Act, RDB Act, IBC, Negotiable Instruments Act or any other law, for recovery of the amounts allegedly due, inasmuch as the MSMED Act being a special law/later law in relation to the aforesaid enactments, the MSMED Act will prevail over them and recovery can be made only in accordance with article 5 (4) (iii) of the aforesaid notification dated 29.5.2015; d. To declare that the MSMED Act insofar as it has not created a special forum/tribunal to enforce the inter-se rights and obligations/remedies, which it has created in addition to those rights/obligations/remedies recognized by the common law, the jurisdiction of the Civil Court is not ousted, for it is impossible to oust the jurisdiction of the Civil Court without providing for an alternative forum/tribunal to adjudicate the inter se disputes between parties who are governed by the Act, and further as a corollary thereof, the DRTs, NCLTs created under the RDB Act, 1993 and the Companies Act, 2013 are invested of no jurisdiction to adjudicate a dispute arising out of/involving the MSMED Act; ....
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...., 35AA, 36, 36AA of the Banking Regulation Act and Sections 45-IE of the Reserve Bank of India Act, and Sections 9 and 10 of the MSMED Act; i. To grant a perpetual mandatory and/or prohibitory injunction, mandating and the directing Central Government and the RBI to enforce the notification dated 29.5.2015 in its true letter and spirit and further to direct the Central Government and the RBI to ensure that recovery action initiated against the Petitioner in violation of the mandate of the notification is recalled, the clock is put back, the injustice which the Petitioner is made to suffer is redressed and that the Petitioner is compensated is full measure; j. To declare that the entire recovery proceedings, under the SARFAESI Act leading to the forceful taking of possession of the Petitioners properties and sale thereof is illegal and void ab initio, being an violation of express statutory provisions and vitiated by fraud and further to quash and set aside the same; k. To issue a Writ in the nature of Prohibition or any other appropriate Writ or order or direction restraining and prohibiting Respondent Bank/Financial institution, their agents, servants, o....
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....up. The said petition was also filed by the same petitioners, with the same prayers and, the next date fixed therein is 18.12.2024. The prayer made in WPL/35823/2024 is quoted as under: a. To declare that the entire proceedings initiated by the Respondent Bank as against the Petitioner in violation of the notification dated 29.5.2015 which not a single bank/financial institution in this country has given effect to, renders such proceedings void ab initio, still born, which alone is the inevitable consequence because the notification does not provide for any penal provision for violation thereof, and that such an inevitable legal consequence as against Banks/financial institutions is not lost or extinguished simply because an MSME, which the law recognizes as predominantly financially illiterate, has failed to raise such a plea before the court/bank; b. To declare that the failure on the part of the Central Government/RBI to implement the MSMED notification dated 29.5.2015, in particular, to ensure that the Board of Directors of the Banks/financial institutions in this country, including the Respondent Bank, constitutes a committed for 'stressed micro, small an....
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....t the 1st Petitioner being an MSME within the meaning of Sections 7 and 8 of the MSMED Act of 2006, it is entitled to the benefits of the said Act and, in particular, the notification S.O. 1432 (E) dated 29.5.2025 issued by the Central Government under Section 9 of the Act which provides for a mechanism of resolution of stress of MSMEs, as also, the circulars and guidelines issued by the Reserve Bank of India under Section 10 of the MSMED Act and further that no proceedings for recovery of the amounts due by the MSMEs to banks/financial institutions, nay, even operational creditors, shall lie against the Petitioner under the SARFAESI Act, RDB Act, IBC, Negotiable Instruments Act or any other law, for recovery of the amounts allegedly due, inasmuch as the MSMED Act being a special law/later law in relation to the aforesaid enactments, the MSMED Act will prevail over them and recovery can be made only in accordance with article 5 (4) (iii) of the aforesaid notification dated 29.5.2015; g. declare that the MSMED Act insofar as it has not created a special forum/tribunal to enforce the inter-se rights and obligations/remedies, which it has created in addition to those rights/o....
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....pondents by the Petitioner and further that the Respondents have no enforceable rights as against the Petitioner; k. declare that the guidelines and notifications issued by the Reserve Bank of India from time to time empowering the bank and financial institutions to declare a borrower as a willful defaulter is without authority of law, for such a declaration amounts to a civil death and further that the Petitioners, nay, a borrower is not liable to be declared as a willful defaulter except by the authority of an Act of Parliament or statutory instrument having the force of law; l. To declare that the various writ petitions and other proceedings which the Petitioner has instituted as detailed in the Exhibit 'X' does not constitute cause of action estoppel, nay, estoppel per rem judicatam/res judicata, or even Issue Estoppel inasmuch as the rights and remedies which the Petitioner seeks to enforce in the instant is based on the notification dated 29.5.2015, and for the added reason that in the previous proceedings before the High Courts of Allahabad and Bombay and other forums there was never an adjudication on merits; m. declare that the entire rec....