Mohammad Shafi Lone (Senior Citizen) v. Jammu and Kashmir Bank Limited & Ors.

Through: Mr. Adil Asimi, Advocate for 1 to 4 Mr. T. M. Shamsi, DSGI with Ms. Rehana Qayoom, Advocate for 5 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE Order 19.04.2024

With the appearance of learned counsel for the caveator, caveat as lodged, shall stand discharged.

Notice, accepted by Mr. Adil Asimi, learned counsel appearing for respondent Nos.1 to 4 and Mr. Shamsi, learned DSGI assisted by Ms. Rehana Qayoom, on behalf of respondent No.5. Brief Facts:-

The petitioner, by the instant petition is challenging the notice issued by the respondent Bank dated 14.08.2023 in terms of Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for short SARFAESI Act, by virtue of which the respondent Bank has sought to recover the amount of loan obtained by the petitioner to the tune of Rs. 2,35,62,533/- (Two crores, thirty-five lacs, sixty- two thousand and five hundred thirty-three).

The challenge to the notice is inter alia made on the grounds that the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document respondent Bank is seeking symbolic possession of the petitioner’s agricultural 2 land falsely claimed to be the mortgaged property. The procedural requirements were not adhered to and the remedy before the Debt Recovery Tribunal (DRT) in Chandigarh is impractical and impinging upon the petitioner’s fundamental rights of access to justice and a fair trial, besides the declaration made in respect of the petitioner, declaring him as a non-performing asset (NPA) is in contravention of the conditions stipulated in the SARFAESI Act and the notice is issued in violation of the principle of natural justice and of the process as stipulated by the SARFAESI Act. The issuance of notice amounts to misuse of the provisions of SARFAESI Act.

Heard learned counsel for the parties, perused the material made available and considered the submissions made.

The challenge to the impugned notice is primarily made in respect of the agricultural land reflected as mortgaged property in contravention of the provisions of SARFAESI Act.

In view of specific submission made by the petitioner in Para-No.3 of the writ petition and in view of the fact that the possession over the mortgaged land has already been taken over by the respondent Bank, the petitioner has not been able to sell the said mortgaged land and if he is allowed to sell the same, he will be in a position to discharge the entire debt which he owes to the respondent Bank. In that view of the matter, the petitioner may approach the respondent Bank with such request of selling the mortgaged land so that the money which he owes to the Bank is paid back and the debt is liquidated.