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2015 DIGILAW 1028 (JHR)

Bijay Kumar Barnwal v. State of Jharkhand

2015-09-01

SHREE CHANDRASHEKHAR

body2015
ORDER : 1. Seeking a direction upon the respondents restraining them from interfering with the petitioners possession over the land comprised in Plot No. 922 under Khata No. 32, the present writ petition has been filed. 2. The learned counsel for the petitioner submits that the petitioner has instituted Title (P) Suit No. 25 of 2014 against respondent nos. 7 and 8. The suit has been admitted and summons have been issued to respondent nos. 7 and 8 who are defendants in the partition suit. It is contended that the respondent nos. 7 and 8 fraudulently mortgaged the land in question to the respondent-United Bank of India and obtained loan. The petitioner came to know about the same through the newspaper report published on 22.06.2015 and he submitted a representation to the Deputy Commissioner disclosing filing of the partition suit. Relying on decision in Harshad Govardhan Sondagar vs. International Assets Reconstruction Company Limited and Others, (2014) 6 SCC 1, the learned counsel for the petitioner submits that the petitioner has right, title and interest over the land in question and therefore, before Title (P) Suit No. 25 of 2014 is finally decided, possession of the suit land cannot be taken by the respondent-United Bank of India. 3. A perusal of the documents on record would disclose that the petitioner is son of respondent no. 7 and respondent no. 8 is his brother. Partition suit has been filed for 1/3 share in the land comprised in khata no. 32, plot no. 922, area 8 decimal. The petitioner has brought on record a public notice dated 19.03.2014 issued by him however, he has claimed that he came to know about the loan taken by the respondent nos. 7 and 8 through, newspaper report dated 22.06.2015 which apparently is a false plea taken by him. In the writ petition except asserting that he has filed Title (P) Suit No. 25 of 2014 and he issued public notice in the newspaper on 19.03.2014, the petitioner has failed to aver any other relevant fact. In the partition suit also, the petitioner has not averred when construction was made over the suit property. The petitioner has not disclosed when the loan was taken from the United Bank of India. In the partition suit also, the petitioner has not averred when construction was made over the suit property. The petitioner has not disclosed when the loan was taken from the United Bank of India. By filing the partition suit, the petitioner has admitted that the suit land is a joint family property though, whether it is joint family property or not is a question which can be adjudicated in the partition suit. In the writ petition, the petitioner has not asserted that the suit property is the only property belonging to joint family. 4. In Harshad Govardhan Sondagar Case, the Hon'ble Supreme Court taking note of the right conferred upon the lessee through a registered lease deed held that if a direction is issued by the Chief Metropolitan Magistrate or the District Magistrate for delivery of possession to the secured creditor, the same may be examined by the High Court. In the present case any order of the Chief Metropolitan Magistrate or the District Magistrate has not been challenged by the petitioner. It has further been held by the Hon'ble Supreme Court that lessee has remedy by way of Section 17 of the SARFAESI Act, 2002, when the secured creditor intends to take over possession of the secured asset which is in possession of the lessee. In the partition suit the petitioner has admitted that he is not in possession of the property in question. Whether the petitioner is entitled for a share in the suit property or not is a question in the pending Title (P) Suit No. 25 of 2014. The provision under the SARFAESI Act, 2002 has over-riding effect, is not in dispute. Merely on the ground of pendency of the partition suit, no direction can be issued to the respondents restraining them from taking possession of the secured asset. 5. Considering the above fact, I find no merit in the writ petition and accordingly, it is dismissed.