Madhya Pradesh High Court
Basant Verma Through Power Of Attorney ... vs The State Of Madhya Pradesh on 20 December, 2016
WP-7844-2016
(BASANT VERMA THROUGH POWER OF ATTORNEY HOLDER MS. MANASWI VERMA Vs THE
STATE OF MADHYA PRADESH)
20-12-2016
Shri Akash Rathi, learned counsel for petitioner.
Shri Yogesh Mittal, learned counsel for respondent No.1.
Shri R.C.Sinhal, learned counsel for respondent No.4. Heard finally with consent.
This writ petition has been filed by the petitioner challenging the notice dated 22/11/2016 issued by respondent No.3 for handing over the possession of the house in question under the SARFAESI Act to the respondent bank.
In brief, the case of the petitioner is that the petitioner was inducted as tenant in the house by respondent No.6 in 2009. Thereafter an agreement to sale was executed in favour of the petitioner and part consideration was paid. The house in question was mortgaged with the respondent bank by the original owner and the repayment was not made, hence, the proceedings under the Securitisation Act were initiated and the order dated 24/2/2014 was passed by the District Magistrate, Dewas u/S.14 of the Act. The petitioner had sought injunction in the pending civil suit against the said order and the matter come before this court in MA No.1108/2014 wherein vide order dated 10/12/2014 respondent No.4 was directed to follow the procedure laid down in case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Co. Ltd & Ors reported in 2014(2)DCR 577, thereafter vide order dated 3/9/2015, the appeal was disposed of without interfering with the order passed by the trial court, but permitting the respondents to proceed in consonance with the judgment of the supreme court in the matter of Harshad Govardhan Sondagar (supra). The respondent No.4 had approached the SDO, Dewas on 3/3/2015, but the application was rejected by the SDO by order dated 25/1/2016 and all of a sudden the impugned notice dated 22/11/2016 was issued for handing over the possession of the house in question to the bank.
Learned counsel for petitioner submits that the respondents are required to approach the District Magistrate in terms of the judgment of the supreme court in the matter of Harshad Govardhan Sondagar (supra) and without taking recourse to the said remedy, the petitioner cannot be asked to handover the possession of the house to the respondent bank.
As against this, learned counsel for respondent bank has opposed the writ petition submitting that the petitioner has remedy of approaching the DRT and he has suppressed the earlier orders passed in the matter. Having heard the learned counsel for parties and on perusal of the record, it is noticed that against the order of the District Magistrate dated 24/2/2014 passed u/S.14 of the Securitisation Act, the petitioner had earlier filed WP No.1778/2014 which was dismissed by order dated 15/4/2014 with liberty to the petitioner to take recourse to the available alternative remedy. Relevant extract of the order dated 15/4/2014 passed in WP No.1778/2014 is as under:-
âThis Court, at the outset, has raised a query to the learned counsel for the petitioner that whether the petitioner is ready to deposit the amount within 30 days or not. The petitioner himself has expressed his inability to deposit the amount in question. Not only this, the earlier order passed by this Court dt.4/12/13 makes it very clear that 10 days time was granted to the petitioner and it was also observed that no further extension will be granted to the petitioner. Not only this, the Bank has already auctioned the property in question and a third party right has been created. The petitioner is neither the borrower nor the guarantor.
This Court is of the considered opinion that the respondent Bank has rightly proceeded ahead in the matter by taking recourse to a remedy provided under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner has earlier also approached the Debts Recovery Tribunal Jabalpur by filing an appeal u/S.17 and the Debts Recovery Tribunal has rejected his prayer for auction vide order dt.8/3/13. The petitioner is certainly free to approach the Debts Recovery Tribunal against the order of the District Magistrate dt.24/2/14. This Court in the peculiar facts and circumstances of the case especially when the petitioner is not the owner nor the guarantor, is not inclined to grant the relief prayed for by the petitioner. The admission is declined with liberty to the petitioner to take recourse to the alternative remedy available to himâ.
The record further reveals that the petitioner had approached this court by way of MA No.906/2013 against the order of the trial court dated 10/4/2013 dismissing the application for temporary injunction and initially the interim protection was granted to the petitioner subject to deposit of the amount, but thereafter the order was vacated vide order dated 3/2/2014. The petitioner had filed IA No.5910/2013 in MA No.906/2013 seeking permission to bid in auction and this court vide order dated 4/12/2013 had again granted relief to the petitioner to deposit the amount within 10 days by passing the following order:-
âSince, the bid has been finalized, therefore, application for participating in the bid (IA No.5910/13) has become infructuous. However, considering the principle of equity, if the appellant deposits whole of the amount due against the borrower alongwith interest till the date of payment within 10 days from today, the respondent no.2/Bank is directed to consider the payment and redeem / release the mortgaged property. It is further made here clear that in no case, this period of 10 days shall be extended as the appellant has already been accommodated by extension of time. If the appellant fails to deposit the amount due within stipulated period of time (10 days), the respondent no.2 / Bank is at liberty to proceed further with the finalization of auction and recover the amount in accordance with lawâ.
There is nothing on record to show that inspite of the order of this court dated 15/4/2014 passed in WP No.1778/2014 the petitioner had approached the DRT. The petitioner is claiming to be the lessee of the house in question. Under the amended provision contained in Section (4-A) of Section 17 of the Securitisation Act, the petitioner has remedy to approach the DRT and file the application claiming tenancy of lease hold rights if any having upon secured assets and the DRT has jurisdiction to examine the matter in the light of the said provision. So far as the earlier order dated 10/12/2014 passed in MA No.1108/2014 is concerned, it is noticed that the petitioner at that stage had suppressed the order dated 15/4/2014 passed in WP No.1778/2014. The subsequent order dated 3/9/2015 passed in MA No.906/2013 and MA No.1108/2013 is on the basis of the interim order dated 10/12/2014.
It is also worth noting that the petitioner has not come to this court with clean hands as the factum of filing the earlier writ petition being WP No.1778/2014 and the earlier order dated 15/4/2014 passed in the said writ petition has been suppressed in the present writ petition. Hence the petitioner is not entitled to the equitable relief. Considering the aforesaid circumstances and the fact that the petitioner has an alternative efficacious remedy of approaching the DRT, no case is made out to entertain the present writ petition. The petition is accordingly dismissed, however, with liberty to the petitioner to avail other remedies in accordance with law. In order to give the breathing time to the petitioner, it is directed that the interim order passed by this court will continue to operate for a period of three weeks from today.
(PRAKASH SHRIVASTAVA) JUDGE