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2021 DIGILAW 188 (UTT)

Rakhi Bera v. District Magistrate

2021-03-23

SHARAD KUMAR SHARMA

body2021
JUDGMENT Sharad Kumar Sharma, J. - The grievance raised by the petitioner(s) in the present writ petition is that, as a consequence of initiation of the proceedings under Section 13 of the SecuritisationF and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be called as "the SARFAESI Act, 2002") an action under Section 13(4) of the Act, of taking over of the possession over the mortgaged property in question, has already been undertaken by the respondents, though petitioner in his petition alleges that the possession, has been taken forcefully, when he was not available over the property in question and his family members, who were residing alone there in the premises, were forcefully dispossessed. 2. Learned counsel for the petitioners contends that during the pendency of the proceedings before the D.R.T, which was initiated by the petitioners pursuant to the earlier directions, which was issued by this Court, in fact, he had drawn proceedings under Section 17 of the SARFAESI Act, 2002, in compliance of the judgement dated 29.01.2021, which was rendered in Writ Petition (M/S) No. 224 of 2021, in which the petitioners contend that he has filed an application before the learned Debts Recovery Tribunal (DRT), which was numbered as IA No. 142 of 2021, for urgent hearing of the matter and, also an Application Number No. 141 of 2021. In the said application, which were filed by the petitioner, in the proceedings of SA No. 16 of 2021, Smt. Rakhi Bera & another Vs. District Magistrate Haridwar and others, the learned DRT, has passed an order dated 18.02.2021, whereby a direction was given which was subject to the condition that petitioners deposit a sum of Rs. 4.00 lakh, the proposal for restoration of possession of one room (temporarily) would be considered by the Competent Authority. 3. The grievance of the petitioners is that, in compliance of the said directions given by the DRT vide its order dated 18.02.2021, he had deposited the amount of Rs. 4.00 lakh, but still the possession of one room, as was directed therein by the said order dated 18.02.2021, has not yet been complied with. 3. The grievance of the petitioners is that, in compliance of the said directions given by the DRT vide its order dated 18.02.2021, he had deposited the amount of Rs. 4.00 lakh, but still the possession of one room, as was directed therein by the said order dated 18.02.2021, has not yet been complied with. He further submits that SA No. 16 of 2021, is still pending consideration and no orders has been passed on it, and its pendency is prejudicial to his interest, hence, he has prayed for the following reliefs in the present writ petition, which are referred to hereunder:- "i) Issue a writ, order or direction in the nature of mandamus, commanding/directing the respondent no. 1 toto take necessary steps to make compliance of the order 18.02.2021 passed by the DRT Dehradun. ii) Issue a writ, order or direction in the nature of mandamus, commanding/directing the Debts Recovery Tribunal, Dehradun to decide the S.A. No. 16.2.2021, Smt. Rakhi Bera and another Vs. District Magistrate, Haridwar & others, expeditiously as possible, with in a period stipulated framed by this Hon'ble court. iii) issue any other relief, which this Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the petitioners. iv) cost of the petition be awarded in favour of the petitioners." 4. The petitioners' case has also been that on account of non-compliance of the order dated 18.02.2021, he has also filed an application before the DRT, alleging contempt of the order dated 18.02.2021. 5. When the matter was taken up today, Mr. Ajay Singh Bisht, the learned Addl. iv) cost of the petition be awarded in favour of the petitioners." 4. The petitioners' case has also been that on account of non-compliance of the order dated 18.02.2021, he has also filed an application before the DRT, alleging contempt of the order dated 18.02.2021. 5. When the matter was taken up today, Mr. Ajay Singh Bisht, the learned Addl. CSC for the State/respondent No. 1, has raised an objection from the view point that this writ petition for a writ of mandamus would not be maintainable in view of sub Section (6) of Section 17 of the SARFAESI Act, 2002, which is quoted hereunder:- "(6) If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal." 6. His argument is from the view point that if the DRT has not decided the matter within the period of four months, as specified under sub Section (5) of Section 17 of the SARFAESI Act, 2002, then the remedy available to the petitioner would be to approach the Appellate Tribunal, for seeking direction to the Debts Recovery Tribunal for expeditious disposal of an application, pending before the DRT. Hence, on this pretext he submits that once the Act itself provides the platform to the petitioner for seeking an appropriate direction for expeditious disposal of the pending application, the writ would not be the remedy, which is available to the petitoner. 7. Hence, on this pretext he submits that once the Act itself provides the platform to the petitioner for seeking an appropriate direction for expeditious disposal of the pending application, the writ would not be the remedy, which is available to the petitoner. 7. Learned counsel for the petitioners contends that the embargo of sub Section (6) of Section 17, would not be applicable for him for the reason, being that the enforcement which he is seeking before the DRT, is at present to the interim order, which was passed on 18.02.2021 for restoring his possession over the one room and hence it would not be an application contemplated under Section 13(4) of the Act as referred to under sub Section (1) of Section 17, which contemplates a recourse to any "measures", which is contemplated under Section 13(4) of the SARFAESI Act, 2002. If Section 13(4) of the Act, itself is taken into consideration, the measure of taking over of possession would also constitutes to be the part of the actions which are contemplated under Section 13(4) of the SARFAESI Act, 2002, and in that eventuality, the measures described therein under sub Section (4) of Section 13 of the SARFAESI Act, 2002, once it falls to be within the ambit of sub Section (1) of Section 17 of the SARFAESI Act, 2002, then the interplay of sub Section (6) of Section 17 of the SARFAESI Act, 2002, for recourse being made available to the petitioners to approach the Appellate Tribunal, in case if the application submitted by him is not decided by the DRT, within the time period as referred therein under sub Section (6) of Section 17 of the SARFAESI Act, 2002 would apply and petitioner's case would fall within the ambit of sub Section (6) of Section 17 of the Act. 8. In view of the said preliminary objection, I am of the view that even for the purposes of enforcement of an order dated 18.02.2021, where the direction was simultaneously issued by the DRT to the petitioners to deposit Rs. 8. In view of the said preliminary objection, I am of the view that even for the purposes of enforcement of an order dated 18.02.2021, where the direction was simultaneously issued by the DRT to the petitioners to deposit Rs. 4.00 lakh and also direction was issued that the possession of one room would be handed over to the petitioner, would fall to be a measure, which is contemplated under sub Section (4) of Section 13 of the SARFAESI Act, 2002, which constitutes to be the part of the actions, which has been taken under sub Section (1) of Section 17 of the SARFAESI Act, 2002. 9. Hence, in that view of the matter, the petitioners' remedy for an expeditious disposal and for compliance of the order dated 18.02.2021, since falls to be within the ambit of sub Section (4) of Section 13, which is inclusive under the provisions contained under sub Section (1) of Section 17, the remedy available to the petitioners would be under sub Section (6) of Section 17 of the SARFAESI Act, 2002. 10. Consequently, this writ petition is dismissed as not maintainable, with the liberty open to the petitioners to approach the Appellate Forum, as provided to the petitioners under sub Section (6) of Section 17 of the SARFAESI Act, 2002.