Himachal Pradesh High Court
Dr. Ajit Pal Jain vs State Of Himachal Pradesh And Others on 9 September, 2021
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 9th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CIVIL WRIT PETITION No.984 Of 2019
Between:
1. DR. AJIT PAL JAIN, SON OF
LATE SHRI NIRANJAN LAL
JAIN;
2. DR. GAGAN JAIN, SON OF
DR. AJIT PAL JAIN;
3. SMT. PARVEEN JAIN, WIFE
OF DR. AJIT PAL JAIN;
4. DR. ASHMA JAIN, WIFE OF
DR. GAGAN JAIN;
ALL ARE RESIDENTS OF
WARD NO.6, NALAGARH,
TEHSIL NALAGARH, DISTRICT
SOLAN, H.P.
....PETITIONERS.
(BY SHRI B.C. NEGI, SENIOR ADVOCATE, WITH MR. RAJESH
KUMAR PARMAR, ADVOCATE)
AND
1. THE PUNJAB NATIONAL
BANK, THROUGH ITS CHIEF
MANAGER, ASSET
RECOVERY MANAGEMENT
BRANCH, SITE NO.5
FEROZPUR ROAD, LUDHIANA
PUNJAB.
2. STATE OF HIMACHAL
PRADESH THROUGH
SECRETARY EXCISE AND
TAXATION, H.P.
SECRETARIAT, SHIMLA
171002 (H.P.)
3. TEHSILDAR, NALAGARH,
TEHSIL OFFICE DISTRICT
SOLAN, H.P.
4. M/S SHIVALIK FIBERS
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2
PVT. LTD. HAVING ITS
REGISTERED OFFICE AT
HOUSE NO.33/1, SARABHA
NAGAR, LUDHIANA (PUNJAB),
THROUGH ITS DIRECTOR,
.
SMT. ANJALI BHALLA, WIFE
OF SHRI VIVEK BHALLA.
....RESPONDENTS.
(BY MR. ARVIND SHARMA, ADVOCATE, FOR RESPONDENT
NO.1.
MR. ADARSH SHARMA, MR. SUMESH RAJ AND MR.
SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL, FOR
RESPONDENTS NO.2 AND 3.
MR. AJAY SHARMA, SENIOR ADVOCATE, WITH MR. AMIT
JAMWAL, ADVOCATE, FOR THE INTERVENER)
Whether approved for reporting?1 No
This petition coming on for hearing this day, the Court passed the following:
JUDGMENT
By way of this petition, the petitioners have prayed for the following reliefs:-
"(i) (a) By way of writ, order or directions the respondents may very kindly be directed to clear the lien note (Rapat No.628) given on the revenue Record of bid property and transfer the same in the name of the petitioners, within short stipulated time;
(b) By way of, the writ, order or directions, respondent No.2 may very kindly be directed to pay 18% interest on the initial bid amount taken by them from petitioners."
2. Facts are not much in dispute. Respondent No.1 invited bids for the sale of property of M/s Shivalik Fibers Pvt. Limited, situated at Muhal Ranguwal, Tehsil Nalagarh, District Solan, H.P. under the SARFAESI Act, 2002. The details of the secured assets which were so put in auction are given in para-3 of the petition. The ::: Downloaded on - 31/01/2022 23:03:00 :::CIS 3 auction of the property subject matter of the writ petition was duly held by the concerned bank. The petitioners before this Court are the bidders whose bid was accepted by the bank qua the sale of the .
property in issue. It appears that the loanee was owing certain amount to the Revenue and on this count, in lieu of the outstanding amount of the Excise and Taxation Department, said entries stand incorporated in the revenue record in favour of the State on the plea that State has first charge over the said property.
3. Learned counsel for the petitioner has submitted that the issue as to whether the first charge over the property of the loanee would be that of the bank (from whom the petitioner has purchased the properties in the auction) or that of the revenue, now stands decided by this Court in CWP No.204 of 2019, titled as Punjab National Bank Versus State of Himachal Pradesh and others, decided on 23.07.2021 and in view of the findings returned in the said petition, this writ petition can also be disposed of by observing that the said judgment shall mutas mutandis apply to this petition also and as the first charge over the property in view of the statutory provisions contained in the SARFAESI ACT, 2002 as well as Recover of Debts and Bankruptcy Act, 1993 is that of the bank, a mandamus be issued to respondent No.1, to issue the Sale Certificate in favour of the petitioners and to direct respondents No.2 and 3 to clear the lien note (Rapat No.628) given on the revenue Record of bid property and transfer the same in the name of the petitioners, within short stipulated time.
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4. The respondents have not disputed the factum of the issue raised in the present petition being covered by the judgment passed by this Court in CWP No.1638 of 2017, titled as Punjab .
National Bank and others Versus State of Himachal Pradesh and Others, decided on 19.05.2021. However, learned Additional Advocate General submits that the petition be disposed of in terms of the above judgment, but without prejudice to the legal rights of the respondent/State as the State intends to challenge the judgment passed by this Court in CWP No.1638 of 2017, titled as Punjab National Bank and others Versus State of Himachal Pradesh and Others, decided on 19.05.2021.
5. Learned counsel for the petitioners submits that they have deposited whole auction amount to the respondent No.1-Bank and the same is accepted by respondent-Bank.
6. Having heard learned counsel for the parties and after perusing the record of the present writ petition as also the judgment passed by this Court in CWP No.1638 of 2017 (supra), as it has not been dispute by the State that the issue involved in this writ petition is, in fact, covered by the judgment, dated 19.05.2021, passed by this Court in Punjab National Bank and another Vs. State of Himachal Pradesh and others, CWP No.1638 of 2017, therefore, this writ petition is allowed by holding that the findings returned in CWP No.1638 of 2017 (supra) shall mutatis mutandis apply to this petition.
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7. To make it more clear, this writ petition is disposed of by holding that the findings returned in CWP No. 1638 of 2017 (supra) shall mutatis mutandis apply to this petition also and the Bank .
being "Secured Creditor", has preference over the respondent-
State with regard to the debts due from the private
respondent(s) and the loanee cannot claim first charge over
secured assets of the loanee, as the Bank has first charge over
the secured assets, in view of the provisions of the SARFAESI Act,
2002 and Recover
of Debts and
1993, as amended from time to time. It is further held that the r Bankruptcy provisions of Section 26 of the H.P. Vat Act, 2005 shall have to give Act, way to the provisions of Section 26E of the SARFAESI Act, 2002 and Section 31B of the RDB Act, 1993.
8. As a consequence thereof, respondent No.1 is directed to issue the Sale Certificate, in favour of the petitioners and respondents No.2 and 3 are directed to clear the lien note (Rapat No.628) given on the revenue record of bid property and transfer the same in the name of the petitioners, within short stipulated time.
9. It is clarified that respondent-Bank shall issue the sale certificate in favour of the petitioners within two weeks from today.
10. It is further clarified that the rigors of the SARFAESI ACT, 2002 with regard to the period within which the sale proceedings are to be completed shall not apply to the case i.e. to say that the time which has been spent by the parties in the Court, ::: Downloaded on - 31/01/2022 23:03:00 :::CIS 6 shall be excluded while computing the same. Pending miscellaneous applications, if any, also stand disposed of.
.
September 09, 2021 (Ajay Mohan Goel)
(rishi) Judge
r to
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