Allahabad High Court
Sanjay Kumar Yadav vs State Of U.P. And Others on 19 May, 2011
Bench: Satya Poot Mehrotra, Jayashree Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 36
Case :- WRIT - C No. - 29267 of 2011
Petitioner :- Sanjay Kumar Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Anand Mohan Pandey
Respondent Counsel :- C.S.C.,M.P. Sarraf
Hon'ble Satya Poot Mehrotra,J.
Hon'ble Mrs. Jayashree Tiwari,J.
As per the averments made in the Writ Petition, the petitioner took housing loan from the respondent no.3-State Bank of Patiyala. The property in question was given as security for the said housing loan.
The petitioner committed default in payment of the said loan. Consequently, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "the Securitisation Act") have been initiated against the petitioner.
Auction Notice dated 11th November, 2010 (copy whereof appears at Page 29 of the Paper-Book of the Writ Petition) has been issued in this regard.
An Order dated 19.4.2011 under Section 14 of the Securitization Act has been passed by the Chief Metropolitan Magistrate, Kanpur Nagar for taking possession of the secured asset.
The petitioner has filed the present Writ Petition, inter-alia, praying for quashing the said Order dated 19.4.2011.
We have heard Shri Anand Mohan Pandey, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent nos. 1 and 2, and Shri M.P. Sarraf, learned counsel for the contesting respondent no.3- State Bank of Patiyala, and have perused the averments made in the Writ Petition.
In United Bank of India Vs. Satyavati Tandon & others reported in 2010 (8) SCC 110, their Lordships of the Supreme Court have laid down that in view of the alternative remedy available under the Securitization Act, the High Court in exercise of Writ Jurisdiction under Article 226 of the Constitution of India should normally not interfere in respect of the proceedings being taken under the said Act.
It is true that in view of the provisions contained in sub-section (3) of Section 14 of the Securitization Act, no Appeal/Application under Section 17 of the Securitization Act may be filed against the Order dated 19.4.2011 passed by the Chief Metropolitan Magistrate, Kanpur Nagar.
However, the proceedings under Section 14 of the Securitization Act are in the nature of execution proceedings for executing/enforcing the Action/Measure taken under sub-section (4) of Section 13 of the said Act.
While Appeal/Application under Section 17 of the Securitization Act may not be filed against the order passed under Section 14 of the Securitization Act, it is open to the person aggrieved to file Appeal/Application against the Action/Measure taken under sub-section (4) of Section 13 of the Securitization Act.
Thus, the petitioner has an alternative remedy of filing Appeal/ Application in regard to the action/ measure taken under sub-section (4) of Section 13 of the Act. Reference in this regard may be made to the following decisions:
(1) Virendra Kumar Jaiswal Vs. Chief Metropolitan Magistrate, Kanpur Nagar and another, 2010 (1) AWC 832.
(2) Bharat Lal Vs. Punjab Nation Bank Housing Finance Limited through its Branch Manager, Varanasi and others, 2010 (80) ALR 580.
In view of the alternative remedy available to the petitioner, we are not inclined to exercise our Writ Jurisdiction under Article 226 of the Constitution of India in the present case.
The Writ Petition is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is accordingly dismissed on the said ground.
Order Date :- 19.5.2011
Ajeet
