Manjeet Kaur vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. Vinay Bhatt, learned counsel for the appellant-writ petitioner and Mr. Gopal K. Verma, learned counsel for the respondent-Bank and, with their consent, the Special Appeal is disposed of at the admission stage.

The appellant herein filed Writ Petition (M/S) No. 3479 of 2019 seeking a writ of certiorari to quash the order dated 16.09.2019 passed by the fourth respondent i.e. District Magistrate, Udham Singh Nagar.

Facts, to the limited extend necessary, are that the appellant-writ petitioner claims to have purchased an extent of 223.04 sq. mtr. land from the third respondent through registered sale deed dated 04.10.2017. On 16.09.2019, the District Magistrate, Udham Singh Nagar passed orders, under Section 14 of SARFAESI Act, directing delivery of possession of the residential house to the respondent-Bank. Contending that she was a bonafide purchaser, without notice of the earlier mortgage, the appellant herein invoked the writ jurisdiction of this Court.

In the order under Appeal, in Writ Petition (M/S) No. 3479 of 2019 dated 19.11.2019, the learned Single Judge observed that the third respondent had obtained a loan from the second respondent i.e. Kashipur Urban Co-operative Bank Ltd., which was not repaid; the property had been mortgaged with the Bank, and was subsequently purchased by the petitioner; on his jurisdiction being invoked, the District Magistrate, Udham Singh Nagar passed an order under Section 14 of the SARFAESI Act; on his directing delivery of possession of the mortgaged property, possession was taken thereof by the Bank; and, in the facts and circumstances of the case, nothing further needed to be done in the matter. While dismissing the writ petition in limine, the learned Single Judge made it clear that the petitioner was at liberty to approach the concerned bank, if she was ready and willing to repay the entire loan amount within a reasonable time, which shall be considered by the Bank in accordance with law. Aggrieved thereby, the present Appeal.

Mr. Vijay Bhatt, learned counsel for the appellant-writ petitioner, would draw our attention to the Encumbrance Certificate, issued by the Sub Registrar's Office, which does not reflect any transaction relating to the mortgage of the said property, to contend that, since the appellant-writ petitioner was not made aware of any such transaction by the third respondent, she is a bonafide purchaser for consideration and without notice of the mortgage; while it may be open for the Bank to proceed against her vendor i.e. the third respondent, her rights over the subject property cannot be disturbed; and the learned Single Judge was in error in refusing to interdict possession being taken of the subject property by the respondent-Bank, pursuant to the order passed by the District Magistrate under Section 14 of the SARFAESI Act.

On the other hand, Mr. Gopal K. Verma, learned counsel for the respondent-Bank, would submit that the appellant-writ petitioner is not a bonafide purchaser; the property mortgaged with the respondent-Bank was a residential house; the appellant-writ petitioner has, conveniently, purchased only the residential plot, as if there was no house in existence on the said land; this itself reveals that both the third respondent and the appellant were hand in glove with each other; the Bank has also lodged an F.I.R. against all those concerned; and the order of the learned Single Judge does not, therefore, necessitate interference.

While Section 13 (13) of the SARFAESI Act disables the vendor from alienating the property, after a notice under Section 13 (2) of the SARFAESI Act has been issued, it is unnecessary for us to dwell on this issue any further, since the petitioner, a person aggrieved, has the right, under Section 17 of SARFAESI Act, to approach the Debts Recovery Tribunal questioning the action of the respondent-Bank in issuing the proceedings under Section 13 (4) of the SARFAESI Act followed by the order passed by District Magistrate under Section 14 of the SARFAESI Act.

When we asked Mr. Gopal K. Verma, learned counsel for the respondent-Bank, whether any sale notice has been issued by the Bank till date, learned counsel would state that no such notice has been issued so far.

Since there is no imminent threat of sale, the appellant-writ petitioner is relegated to avail their statutory remedy under Section 17 of the SARFAESI Act. Suffice it to observe that, in case the appellant-writ petitioner avails the remedy under Section 17 of the SARFAESI Act, the Tribunal shall examine her claim on its merits uninfluenced by the observations made either in the order under Appeal or in the order now passed by us.

The order under Appeal is modified accordingly, and the Special Appeal is disposed of. No costs.

Let a certified copy of this order be issued by 06.12.2019.