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2018 DIGILAW 918 (ALL)

BHOLA NATH SHUKLA v. STATE OF Uttar Pradesh

2018-04-16

A.P.SAHI, SHASHI KANT

body2018
JUDGMENT By the Court.—Heard Sri Prashant Kumar Tripathi, learned counsel for the petitioner-auction purchaser, learned Standing Counsel for respondent Nos. 1 to 4, Sri Anil Kumar, learned counsel for respondent Nos. 5 and 6-Punjab National Bank and Sri Kanhaiya Lal, the borrower who has appeared in person and is arrayed as respondent No. 8 (hereinafter referred to as “the respondent”) representing respondent No. 7. 2. Sri Kanhaiya Lal states that he is representing the other private respondents as next friends inasmuch as he appearing in person, should be allowed to conduct his own case as he can no longer afford a lawyer. We permit him to proceed. 3. Sri Kanhaiya Lal has taken a preliminary objection regarding maintainability of the writ petition relying on the judgment of this Court in Writ-C No. 6888 of 2015 - Vinod Kumar Srivastava v. District Magistrate and 4 Others, decided on 3rd October, 2017, to contend that the petitioner cannot seek possession of the premises as it is a purely contractual matter between the Bank and the petitioner. He therefore, submits that no mandamus can be issued as prayed for and therefore the writ petition does not deserve to be entertained or any direction issued. 4. The case has a chequred history and it appears that respondent No. 8 took a loan from the respondent - Punjab National Bank for running a carpet business. There appears to be a default in repayment of loan and consequently the Bank invoked the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Interest Act, 2002 (hereinafter referred to as “the Act, 2002”), and issued a notice under Section 13(2) of Act, 2002 on 5.2.2013 followed by a notice under Section 13(4) of the Act, 2002. 5. The contesting respondent appears to have moved an application under Section 17 of the Act, 2002 being Application No. 30 of 2010, which is stated to have been dismissed in default on 17.10.2011, where upon a notice was published by the Bank on 9th October, 2012. The respondent appears to have questioned the same through Securitisation Application No. 337 of 2012 before the Debt Recovery Tribunal (hereinafter referred to as “the D.R.T.”) wherein an interim order was passed calling upon the respondent to deposit a sum of Rs. 7,00,000/- and a conditional order was passed. The respondent appears to have questioned the same through Securitisation Application No. 337 of 2012 before the Debt Recovery Tribunal (hereinafter referred to as “the D.R.T.”) wherein an interim order was passed calling upon the respondent to deposit a sum of Rs. 7,00,000/- and a conditional order was passed. According to the petitioner, respondent did not comply with the order where after the Bank sent a notice to the respondent for settlement, which proposal was contained in the letter dated 7.11.2012. Not only this another demand was made for getting the matter resolved, through the Lok Adalat on 11th October, 2013, which also did not yield any result. The Bank proceeded to publish another notice for auction on 13th November, 2013 and the auction was held on 16.12.2013 in which the petitioner is stated to have purchased the property. 6. The respondent again approached the D.R.T. by moving Securitisation Application No. 342 of 2013, which was dismissed on 20th December, 2013. The sale certificate is stated to have been issued by the Bank in favour of the petitioner on 31.12.2013. 7. The respondent appears to have filed Writ Petition No. 519 of 2014 in which orders were passed on 7th November, 2014, but the petition was subsequently dismissed on the ground of alternative remedy on 25.5.2015, allowing the respondent to approach the concerned forum in terms of the Act, 2002, which is an appeal in terms of Section 18 of the Act, 2002. 8. On 2nd June, 2015, the petitioner is stated to have obtained a sale-deed, executed by the Bank and the respondent appears to have filed an appeal after dismissal of the writ petition being Appeal No. 113 of 2015, in which an interim order of status quo was passed on 22nd June, 2015. The status quo order which was continued thereafter is extracted herein below : “Order dated 22.6.2015 Learned counsel for the appellants submits that he has deposited 50% pre deposit amount as required under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Secutiry Interest Act, 2002. Learned counsel for the respondent-Bank submits that the arguing counsel is not available today. List this case on 23.6.2015 as prayed.” “Order dated 23.6.2015 Learned counsel for the respondent-Bank has today filed reply, copy of which has been given to the learned counsel for the appellants. Learned counsel for the respondent-Bank submits that the arguing counsel is not available today. List this case on 23.6.2015 as prayed.” “Order dated 23.6.2015 Learned counsel for the respondent-Bank has today filed reply, copy of which has been given to the learned counsel for the appellants. Learned counsel for the appellants submits that he wants to file rejoinder. List this case on 8.7.2015 as prayed. Till then parties are directed to maintain the status quo with regard to the disputed property as it exists today.” 9. Upon exchange of objection and rejoinder-affidavit, the Debt Recovery Appellate Tribunal (hereinafter referred to as “the D.R.A.T.”) vide judgment and order dated 22nd September, 2017 remanded the matter back to the D.R.T. 10. The petitioner aggrieved by the remand order, filed Writ Petition No. 62114 of 2017 that has been allowed on 29th January, 2018 by the following order which is extracted hereinbelow : “The borrower filed an appeal registered as appeal S.R. No. 113 of 2015 against the order of DRT. The Appellate Authority by the impugned order 22.9.2017 has held that the earlier cases were filed by respondent Nos. 2 to 5 at the stage of taking possession, while the present case was filed against the auction, therefore, it was a separate cause of action. The borrower was not obliged to disclose the fact that the earlier proceeding were taken against the taking possession and this was not concealment of material facts and on this ground the subsequent case filed by the borrower was not liable to be dismissed. On the findings, the appeal was allowed and the matter was remanded to the DRT to decide the matter in accordance with law, hence, this writ petition has been filed. It is admitted by the parties before the Appellate Authority that the entire material were on record and the appeal could have been decided on merit instead of remanding the case. The writ petition is partly allowed. The order of the Appellate Tribunal dated 22.9.2017 to the extent of remanding the matter to the DRT for deciding the case again, is set aside. The Appellate Authority is directed to decide the entire controversy raised by the parties on merits in accordance with law.” 10. The writ petition is partly allowed. The order of the Appellate Tribunal dated 22.9.2017 to the extent of remanding the matter to the DRT for deciding the case again, is set aside. The Appellate Authority is directed to decide the entire controversy raised by the parties on merits in accordance with law.” 10. It is thus, evident that in this backdrop the matter is engaging the attention of the D.R.A.T., where the next date fixed by the Tribunal is 16.7.2018 as informed by the respondent No. 8. 11. Present writ petition also appears to have been filed by the auction purchaser simultaneously seeking possession of the property. 12. We may put on record that the manner and prescription for delivering possession under the Act, 2002 and The Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as “the Rules, 2002”) framed thereunder are provided for, the execution whereof can be carried out in terms of Rule 9(9) read with Rule 9(7) of the Rules, 2002 which is extracted here under : “9. Time of sale, issues of sale certificate and delivery of possession, etc.— (7) Where the immovable property sold is subject to any encumbrances, the authorised officer may, if he thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him: [Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of the money deposited by the purchaser such surplus shall be paid to the purchaser within fifteen days from the date of finalisation of the sale.] ........... (9) The authorised officer shall deliver the property to the purchaser free of encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above.” 13. In the wake of any order of the District Magistrate under Section 14 of Act, 2002 for taking physical possession or even otherwise the attempt of the authorised officer for taking possession in terms of Section 13(4) of the Act, 2002 can also be executed for which the Rule above and the Income Tax (Certificate) Proceedings Rules, 1962 can be resorted to. These Rules do not appear to have been a matter of consideration in the decision of the Division Bench in the case of Vinod Kumar Srivastava (supra). In our opinion a writ for the enforcement of statutory obligation can be maintained as in the present case. 14. Learned counsel for the Bank submits that after passing of the order of possession by the District Magistrate on 14.2.2013, intimation was sent to the Sub Divisional Officer on 4th December, 2017 for providing administrative and Police assistance for taking over possession. The Police was also accordingly informed. 15. We find that the said action was activated with the order of the District Magistrate dated 4th December, 2017 which was practically after the remand order of D.R.A.T. Dated 22.9.2017. As quoted above there was also a status quo order in favour of the respondent continuing when the D.R.A.T. finally remanded the matter to the Tribunal on 22.9.2017. In such circumstances, the authority ought to have taken notice of the said facts before proceeding to take actual physical possession of the premises. 16. In the aforesaid background, we therefore, have no reason to issue a mandamus in favour of the petitioner, even though the writ petition would be maintainable keeping in view the statutory provisions referred to hereinabove for any enforcement of such rights. 17. Consequently the matter can be resolved by issuing a direction to the D.R.A.T. to proceed to dispose of the appeal itself by the next date fixed. 18. The writ petition is therefore, disposed of with a direction to the D.R.A.T. to dispose of the appeal No. 113 of 2015 as observed in the judgment of the High Court dated 29.1.2018 and then it will be open to the petitioner to move an appropriate application to take steps for retrieving actual physical possession in the event the auction in favour of the petitioner is sustained. 19. The writ petition stands disposed of with aforesaid directions.