Allahabad High Court
Kamal Kumar Agarwal vs State Bank Of India Stress ... on 20 October, 2022
Bench: Attau Rahman Masoodi, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4
Case :- WRIT - C No. - 7416 of 2022
Petitioner :- Kamal Kumar Agarwal
Respondent :- State Bank Of India Stress Recovery Management Branch Lko.Thru. Its Authorized Officer And Others
Counsel for Petitioner :- Abhishek Khare,Bal Keshwar Srivastava
Counsel for Respondent :- Anurag Srivastava
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
Vakalatnama filed by Shri S.S. Rajawat learned counsel on behalf of the opposite party nos. 1 and 2 is taken on record.
Heard Sri Abhishek Khare learned counsel for the petitioner and Sri S.S. Rajawat learned counsel who has put in appearance on behalf of the opposite party nos. 1 and 2.
The present writ petition has fallen for our consideration in peculiar circumstances. The petitioner is stated to have entered into an agreement for sale of the property in question with opposite party no. 3 as far back as on 31.5.2006. The agreement for sale of the property was conditioned; one of the conditions stipulated in the agreement was payment of the entire sale consideration within one year i.e. on or before 30.5.2007.
It appears that on account of non-performance of contract on the part of the respondent no. 3, a suit for specific performance came to be filed by the petitioner on 31.5.2007 and the same continues to be pending. The suit is stated to be pending at the stage of evidence. In the meantime, the original owner i.e. respondent no. 3 transferred the property in favour of the respondent nos. 4, 5 and 6 through a registered sale-deed executed on 9.6.2014. The respondent nos. 4, 5 and 6 after purchase of the property in question through registered sale-deed executed on 9.6.2014 obtained a huge amount of loan by pledging the property in question with the State Bank of India i.e. respondent no. 2. The respondent nos. 4, 5 and 6 committed default insofar as the repayment of loan is concerned. Consequently, the proceedings under the SARFAESI Act came to be initiated against them. There is also an averment made in the writ petition that some sale transaction has also taken place in favour of the respondent no. 7 in respect of a part of the property in question but only a sale agreement to that effect has been placed on record and the same relates to a point of time when the recovery proceedings were initiated i.e. in 2020.
Be that as it may, in furtherance of the proceedings under the SARFAESI Act having been initiated by the Bank against respondent nos. 4, 5 and 6, a sale notice has come to be issued. It is this sale notice which the petitioner has assailed in the present writ petition under Article 226 of the Constitution of India while pendency of the suit for specific performance registered as Regular Suit No. 298 of 2007 which is progressing at the stage of evidence.
Learned counsel for the petitioner has argued that the property mortgaged by the respondent nos. 4 to 6 cannot be proceeded against for auction during pendency of the suit filed by the petitioner. It is also submitted that some criminal proceedings have also been instituted by the parties against each other on account of which the proceedings initiated under the SARFAESI Act are bad in the eye of law.
Learned counsel appearing for the Bank has argued that insofar as the petitioner is concerned, he was never an ostensible owner of the property in question, therefore, the relief prayed for in the suit for specific performance as per law is merely a hope which cannot be construed to be legal bar. The suit for specific performance according to the submissions made is capable of more than one relief, therefore, the preferential right of the Bank to realize the public money which is a preferential charge cannot be defeated.
On the mere pendency of the suit before the competent civil court, it is also argued that the measures adopted under the SARFAESI Act are not subservient, therefore, the petitioner has an alternative remedy under Section 17 of the SARFAESI Act.
Insofar as the availability of the alternative remedy under Section 17 of the Act is concerned, learned counsel for the petitioner placing reliance upon the Division Bench judgment rendered by this Court in writ petition no. 4516 of 2013 has argued that the petitioner being a third party does not have a locus to institute the proceedings under Section 17 of the Act, inasmuch as, the petitioner is neither a borrower nor guarantor in respect of the loan amount advanced by the Bank.
This position seems well settled in the aforementioned judgment.
The submissions put-forth by learned counsel for the petitioner appears to be correct and we are not convinced to take a different view of the matter.
We are however of the opinion that the petitioner was never an ostensible owner of the property in question and he can claim the whole relief before the competent civil court where all the affected parties are impleaded admittedly. Parallel proceedings cannot be initiated relating to the same subject matter which consequently defeats the object of finality achieved through judicial process. Moreover the civil court have much wider jurisdiction.
Thus, we decline to entertain the present writ petition under Article 226 of the Constitution of India simultaneous to the pendency of the regular suit pending before the competent civil court. In case an appropriate relief is sought for before the competent civil court by making an application, the same shall be decided expeditiously in accordance with law.
The writ petition is however declined to be entertain and the same is hereby rejected.
Order Date :- 20.10.2022
kanhaiya
