Allahabad High Court
Mrs. Saumya Saxena & Anr. vs Auth.Officer Allahabad Bank Main ... on 18 December, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- MISC. BENCH No. - 35481 of 2019 Petitioner :- Mrs. Saumya Saxena & Anr. Respondent :- Auth.Officer Allahabad Bank Main Branch Lucknow & Ors. Counsel for Petitioner :- Kunwar Shushant Prakash,Rana Rahul Singh Counsel for Respondent :- Vinay Shanker,Manu Dixit,Prashant Kumar Srivastava Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Sri Prashant Kumar Srivastava Advocate has filed his power on behalf of opposite party no.1. The same is taken on record.
Heard Kunwar Shushant Prakash, learned counsel for the petitioners,Sri Prashant Kumar Srivastava, learned counsel appearing on behalf of opposite party no.1 and Sri Manu Dixit, learned counsel for opposite party no.3.
By this writ petition, a challenge has been made by the petitioner to the possession notice dated 28.08.2019 and sale notice dated 16.11.2019.The petitioner has also sought the consequential reliefs.
Issue notice to opposite parties no. 2 and 4.
Learned counsel for the petitioners for the purpose of interim relief submits that petitioners applied for allotment of property in question i.e. Flat no.D-202 Rohtas Plumeria Homes,Vibhuti Khand, Gomti Nagar, Lucknow. The property in question was allotted to the petitioners and agreement to sell was executed on 27/28.7.2015. For the purpose of purchase of property in question, petitioners took home loan from H.D.F.C. bank. The entire payment was made by the petitioners to opposite party no.2-M/s Andes Town Planners Private Limited, Lucknow, a subsidiary of M/S Rohtas Project Limited, New Delhi and thereafter possession of flat was handed over to the petitioners. Petitioners are in possession of the property in question.For proving the possession over the property in issue, learned counsel for the petitioners placed reliance on anneuxre no.9,10 and 13 to the writ petition.
It is further submitted by learned counsel for the petitioners that opposite party no.1 in a proceedings under SARFAESI is proceeding to auction the flat of the petitioners,though the petitioners are neither the borrowers nor the guarantors. In fact loan was taken by the opposite party no.4- M/s Hydric Farm Inputs Limited and opposite party no.2 is the guarantor, as appears from the impugned sale notice.
Learned counsel for the petitioner further requests that opposite party no.1 may be restrained from auctioning the petitioners' flat.
Sri Prashant Kumar Srivastava, learned counsel for opposite party no.1 submits that petitioners' flat was mortgaged with Allahabad Bank and the petitioners was subsequent purchaser. So in these circumstances, bank can auction the petitioners' flat under SARFAESI Act.
Learned counsel for opposite party no.1 further submits that petitioners have a remedy under Section 17 of the SARFAESI Act as such present writ petition is not maintainable.
With regard to maintainability of writ petition, learned counsel for the petitioners submits that petitioners are neither the borrowers nor the guarantors and as such in view of the same, remedy under section 17 of the Act is not available to the petitioners. it is in view the language of Section 13(4) read with Section 17 of the SARFAESI Act, the writ petition is maintainable Learned counsel for the petitioners, further submits that petitioners, after making full payment to opposite party no.2, is in possession of the property in issue . In this regard, a reliance has been placed above mentioned documents as well as clause 17 of the agreement to sell which reads as under:-
"That the purchaser has agreed that under no circumstances the possession of the flat shall be given by the First Party to the Purchaser unless and until all payments required to be made under this agreement and/or any other amount payable by the purchaser with respect to the said flat in respect thereof has been made, nor shall the purchaser have any right to claim possession of the flat without having completed the payments payable under this agreement at the time and in the manner stipulated. The purchaser has agreed that he shall pay all arrears demanded by the First Party within 7 days of the receipt of the notice. It is understood that the purchaser shall before taking the possession of said flat being given to him shall satisfy himself about the quality of work etc. of his flat and shall have no claim against the First Party, on any item of work, quality of work materials installation etc., in the said residential unit or in any other agreement whatsoever and the claim, if any, if brought to notice of the First Party be got removed by the First Party before taking possession.
However, as a special case purchaser is being given a concession to the extent that he will notify all construction complaints/defects within three months from the date of possession. All such complaints/defects shall be examined and removed by the First Party as it deems fit as per report of its Architect within reasonable time."
Learned counsel for the petitioners further submitted that on coming to know about auction taken by opposite party no.1 under SARFAESI Act, petitioners preferred objection dated 26.11.2019 before opposite party no.1 but till date no heed has been taken on the representation of the petitioners and the opposite party no.1 is adamant to proceed in pursuance of sale notice.
Learned counsel for the petitioners also stated that in the facts and circumstances of the case, indulgence of this Court is required otherwise the petitioner will suffer irreparable loss and injury on account of mischief committed by the opposite parties.
After hearing learned counsel for the parties, who are present today, prima facie, we find force in the submission made by learned counsel for the petitioners, as such, as an interim measure, it is provided that till the next date of listing, petitioners should not be dispossessed from the flat in question.
Learned counsel for the respondents pray for and are granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter showing the name of Shri Prashant Kumar Srivastava, as counsel for the opposite party no.1.
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(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 18.12.2019 dk/