Punjab-Haryana High Court
Gulshan Kumar vs State Of Punjab on 8 April, 2024
Author: Lisa Gill
Bench: Lisa Gill
CWP No. 7960 of 2024(O&M) 1 2024: PHHC:047585-DB IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7960 of 2024(0&M) Date of Decision:08.04.2024 Guishan Kumar seseee Petitioner Versus State of Punjab and others sesees Respondents CORAM:- HON'BLE MRS.JUSTICE LISA GILL HON'BLE MS. JUSTICE AMARJOT BHATTI Present: Mr. N.P.S.Mann, Advocate for the petitioner. Mr. Gaurav Goel, Advocate for respondent no.5.-Bank. oh 35 2K 3k LISA GILL, J(Oral).
1. Prayer in this writ petition is for quashing entry made vide Rapat No. 353 in the jamabandi for the year 2012-13, Annexure P-3, declaring creation of equitable mortgage in favour of respondent no.5- Punjab National Bank, Branch Nihal Singh Wala for the land bearing Khasra No. 29//25/2, Khasra No. 30//21/1/1/1/1/2 and Khasra No. 29//25/1. Petitioner also seeks a direction to respondent no.5-Bank to refrain from carrying out auction of the property in question or change the nature of the same in proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act').
2. It is pleaded that respondent no.4, who is the owner in saway #pOSSession of land as detailed in petition mortgaged said land to the 16:09 I attest to the accuracy and integrity of this document CWP No. 7960 of 2024(O&M) 2 petitioner on 26.05.2016 vide registered mortgage deed for a sum of %1,50,00,000/- paid in cash. Possession of property was not handed over to petitioner. It is stated that at the time when land in question was mortgaged in favour of petitioner, there was no entry in the revenue record and specifically the jamabandi for the year 2012-13 in respect to mortgage of said land in question in favour of respondent no.5-PNB. This it is stated is evident from jamabandi for the year 2012-13 issued to petitioner on 10.05.2016. It is submitted that when respondent no.4 failed to repay the amount in terms of the mortgage, petitioner filed a suit for recovery for an amount of €1,55,32,500/-. After filing the civil suit, petitioner approached the revenue authorities for recording an entry regarding pendency of civil suit to be made in the revenue record. Jamabandi for the year 2012-13 was again issued to the petitioner on 14.09.2017, however petitioner was surprised to see that an entry in favour of respondent no.5-PNB vide Rapat no. 353 was also made declaring the land in dispute to have been mortgaged by respondent no.4 in favour of respondent no.5-PNB. Suit filed by the petitioner, it is submitted was decreed in his favour vide judgment and decree dated 09.03.2020. After passing of the said decree dated 09.03.2020, petitioner again filed an application on 12.05.2020 before respondent no.3- Tehsildar, Nihal Singh Wala, District Moga for carrying out the necessary entry in respect to passing of the decree in his favour, but to no avail.
3. Learned counsel for petitioner submits that property mortgaged to petitioner vide registered mortgage deed cannot be allowed to be treated as mortgaged with respondent no.5. It is pleaded that petitioner is a bona fide purchaser of the above said property by way of registered mortgage deed dated 26.05.2016 after duly verifying the record from the revenue authorities. It is contended that petitioner cannot be made to suffer due to 3024.04.18 16:09 I attest to the accuracy and integrity of this document CWP No. 7960 of 2024 (O&M) 3 negligence and careless attitude of respondents no.4 and 5. It is submitted that if property in question had been mortgaged in favour of respondent no.5 and the same incorporated in revenue records at the correct point of time, petitioner would not have purchased this property. It is further stated in the petition that petitioner is not aware of proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') being initiated. No notice whatsoever has ever been served upon the petitioner. It is, thus, submitted that entry made in terms of Rapat No. 353 in the jamabandi for the year 2012-13 in respect to equitable mortgage created in favour of respondent no.5 in respect to the property in question, should be set aside.
4. Learned counsel for respondent-Bank (on advance notice), informs that proceedings under SARFAESI Act were initiated by the respondent-Bank after declaration of the loan account 'Non Performing Asset' (NPA) with notice(s) under Section 13(2) and 13(4) of SARFAESI Act being issued. Property in question stands auctioned with sale certificate being issued on 06.03.2024. It is further submitted that in view of the above, present writ petition should be dismissed.
5. We have heard learned counsel for the parties and have carefully scrutinized the file with their able assistance, however, we do not find any ground whatsoever to entertain the present writ petition. On one hand, petitioner claims that land in question was mortgaged to him by way of a registered mortgage deed by respondent no.4 and paradoxically on the other hand claims to be a bona fide purchaser of property in question having paid €1,50,00,000/- in cash to respondent no.4. Passing of the judgment and decree for recovery of mortgage amount with interest, to which respondent-
Bank was not a party cannot be of any avail to the petitioner to invoke SANJAY KHAN 2024.04.18 16:09 I attest to the accuracy and integrity of this document CWP No. 7960 of 2024(O&M) 4 jurisdiction of this Court under Article 226 of the Constitution of India. Evidently, proceedings under the SARFAESI Act were initiated by respondent-Bank against respondent no.4, owner of the property and sale certificate stands issued. Argument raised by learned counsel for petitioner that as he is neither the borrower nor guarantor, therefore, does not have the remedy to approach learned DRT, is devoid of any merit. In terms of Section 17 of SARFAESI Act, remedy to challenge the said SARFAESI proceedings was very much available with petitioner. Furthermore, disputed questions of fact are raised in this writ petition, which does not call for interference by this Court, at this stage.
6. Keeping in view the facts and circumstances as above, this writ petition is dismissed with liberty to petitioner to avail the remedy(ies) available to him in accordance with law. There is no expression of opinion on the merits of the matter. Pending application(s), if any, stand(s) disposed of accordingly.
(LISA GILL ) JUDGE (AMARJOT BHATTI) April 08, 2024. JUDGE lucky/ s.khan Whether speaking/reasoned : Yes/No. Whether reportable : Yes/No. SANJAY KHAN 2024.04.18 16:09 I attest to the accuracy and integrity of this document