High Court
Case Details
Court No. - 40 Case :- WRIT - C No. - 40268 of 2022
Legal Reasoning
Petitioner :- State Bank of India Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Praneet Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Vivek Kumar Singh,J. Heard learned counsel for the petitioner and learned Standing Counsel. Present writ petition has been preferred for a direction to respondent No. 2 to provide the police assistance for taking physical possession of the property in question in favour of the petitioner-bank; for a direction to respondent no.4 to handover the physical possession of the property in favour of the bank forthwith and collect the sale proceed in compliance of the order dated 10.4.2017 passed by the DRT, Allahabad and for a further direction to respondent no.3 to liquidate the dues of the petitioner bank. The petitioner-State Bank of India had initiated recovery proceeding under the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which was challenged by the respondent no. 3 by filing S.A. No. 273 of 2011. During pendency of the S.A. the authorized officer of the bank had taken physical possession of the secured asset. The property was put to auction and it was auctioned on 31.03.2012 in favour of respondent No. 4-Smt. Kiran w/o Sri Gajendra Singh and after confirmation of sale and execution of sale deed, the authorized officer of the bank had delivered physical possession of the property in question in favour of auction purchaser on 09.07.2014. The S.A. No. 273 of 2011 was decided finally vide order dated 10.04.2017 and DRT Allahabad while deciding the S.A. had set aside the sale and directed to refund the sale proceed to the auction purchaser with interest applicable to FDR after taking back possession and all requisite original documents. By the said order dated 10.04.2017 the auction purchaser was specifically directed to handover the physical possession of the property. The respondent no. 3 was directed to deposit the dues of the bank with interest and cost within 15 days. The aforesaid order was challenged by the respondent no. 4 auction purchaser before the DRAT, Allahabad by filing an Appeal No. 126 of 2017, the same was also challenged before this Court by filing Writ Petition No. 902 of 2022 and also the same was challenged before the Apex Court by preferring a SLP No. 10792 of 2022 but could not get any favourable order. On the other hand, the petitioner-bank after setting aside the sale immediately issued letter to the auction purchaser for handing over the physical possession of the property but auction purchaser had challenged the order dated 10.04.2017 before the higher courts. After dismissal of the SLP vide order dated 22.07.2022, the petitioner-bank had written letter to the District Magistrate, Kanpur Nagar on 05.08.2022 and requested for execution of the orders dated 10.04.2017 passed by the DRT Allahabad. While deciding the S.A. No. 273 of 2011, the Tribunal had not given any finding regarding handing over of the physical possession in favour of the borrower, therefore, till liquidation of the bank dues, the borrower is not entitled for restoration of possession of the property in his favour. Submission is that by the order dated 16.05.2022 passed in Writ C No. 902 of 2022 (Smt. Kiran Singh v. State of U.P. & Ors), Smt. Kiran Singh (respondent No. 4 herein this writ petition) had asked for quashing the order dated 06.12.2021 passed by the Debts Recovery Tribunal (DRT), Allahabad. Learned Single Judge had dismissed the said writ petition with cost of Rs. 1 lac with observation that upon copy of the order being placed before the executing authorities including the District Magistrate, they shall ensure possession of the disputed property to be made over to respondent no. 4 (petitioner herein this writ petition) within one week, failing which the respondent together with petitioner (Smt. Kiran Singh) may expose themselves to compensation. Cost was directed to be paid to the borrower. On the other hand, learned Standing Counsel has raised an objection that earlier a writ petition was filed by Smt. Kiran Singh being Writ-C No. 902 of 2022 (Smt. Kiran Singh v. State of U.P. & Ors.) in which the petitioner-bank was a party. The said writ petition was dismissed by order dated 16.5.2022, the operative portion of which is reproduced as under:- ".................Having heard learned counsel for the parties and having perused the record, the impugned order dated 6.12.2021 does not suffer from any error. Once the order dated 10.4.2017 attained finality upon dismissal of appeal arising therefrom i.e. in light of the order of the Debts Recovery Appellate Tribunal dated 28.11.2018 passed in Appeal No. 126 of 2017, no further rights survived to the petitioner as may have allowed her to continue in possession for a single day beyond the time granted by the DRT. In any case by order dated 6.12.2021 the Tribunal granted the petitioner 15 days time to vacate the premises. Even that has not been done. The rights of the petitioner have been extinguished, the impugned order does not suffer from any infirmity. The fact that the petitioner is a lady does not entitle her to deprive the rightful owner of the property from its enjoyment. Whatever money the petitioner may be entitled to may be claimed by her from the Bank but not by way of ransom by holding over possession of the property not belonging to her. Accordingly the writ petition is dismissed with cost of Rs.1,00,000/-. It is further provided, that upon the copy of this order being placed before the executing authorities including the District Magistrate, they shall ensure the possession of the disputed property is made over to respondent no.4 within a period of one week from date of such compliance being made failing which the said respondent together with the present petitioner may expose themselves to compensation. Cost to be paid to the respondent no.4." In this backdrop, it is submitted by learned Standing Counsel that in case the grievance of the petitioner-Bank in the light of the aforesaid order has not been redressed, the remedy is to file a contempt petition but instead of filing the contempt petition, present writ petition is preferred, which can be treated as second writ petition and as such the same is liable to be dismissed.
Decision
Confronted with this situation, learned counsel for the petitioner states that the writ petition may be dismissed as not pressed. Accordingly, the writ petition is dismissed as not pressed. Order Date :- 7.2.2023 Jaswant Digitally signed by :- JASWANT KUMAR High Court of Judicature at Allahabad