_______________________________________________________ vs District Magistrate-Cum-Deputy ...
2021 Latest Caselaw 2370 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No.954 of 2019

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Date of Decision: 22.3.2021

_______________________________________________________ HDB Financial Services Limited .......Petitioner

Versus District Magistrate-cum-Deputy Commissioner, Shimla & others.

... Respondents.

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1

For the Petitioner: Mr. Vipul Dharmani & Mr. Govind Korla, Advocates.

For the Respondents:Mr. Sudhir Bhatnagar and Mr. Arvind Sharma, Additional Advocate

Generals, with Mr. Kunal Thakur and Ms. Svaneel Jaswal, Deputy Advocate Generals, for the

respondents-State.

___________________________________________________________

Sandeep Sharma, Judge(oral):

By way of instant petition, petitioner has prayed

for following relief:-

"(i) Issue writ in the nature of mandamus directing to the respondent No.1 to execute its order dated

Whether the reporters of the local papers may be allowed to see the judgment?

19.04.2018, Annexure P-4 and take necessary steps to take physical possession of the secured asset from the borrowers with the help of police,

.

if necessary and hand over the same to the

petitioner-Company forthwith within a specific time frame as per the mandate of the Section 14

of the SARFAESI Act, 2002.

2. The precise grouse of the petitioner as has been

raised in the instant petition is that despite repeated request

no order is being passed by respondent No.1 on the

application having been filed by the petitioner, praying

therein for implementation/ execution of order dated

19.4.2018, passed by District Magistrate, Shimla, District

Shimla, H.P., in Misc. case No.10 of 2018, whereby

respondent No.1 in exercise of the powers vested in him

under Section 14 of the Securitization and Reconstruction of

Financial Assets and Enforcement Security Interest Act, 2002

( for short 'Act'), ordered to take over the possession of the

property of the borrower/respondents/guarantor as per the

description of property mentioned in the application i.e. land

comprised in Khata/Khatauni No.126/142, Khasra No.

325/191 and 326/1919, area admeasuring 0-03-15 hector

situate within the revenue estate of Mauja/Mohal

Lambidhar, Tehsil Shimla (Rural), District Shimla, H.P., and

.

to hand over the same to the applicant/petitioner.

3. Careful perusal of Annexure R-1 annexed with the

reply filed by respondents No.1 and 2, though reveals that the

authority concerned after receipt of aforesaid application filed

on behalf of the petitioner called report from the Tehsildar,

Shimla, but there is nothing in the reply suggestive of the fact

that the authority concerned after having received the report

from the Tehsildar concerned proceeded to pass an order on

the application having been filed by the petitioner. Though,

reply filed on behalf of respondents No.1 and 2 reveals that

order sought to be implemented is not executable for the

reason that before passing of the order sought to be executed,

property in question stands sold to so many parties and they

have been not added as party respondent.

4. Be that as it may, once an application is filed for

implementation/execution of the order passed under Section

14 of the Act, it is bounden duty of the authority concerned to

decide the same in accordance with law. Though, report

submitted by the Tehsildar reveals that since property in

.

question stands sold to various persons, order sought to be

executed/implemented is not executable, but authority

concerned i.e District Magistrate ought to have passed final

order in the application on the basis of the report submitted

by the Tehsildar. Mere filing of report by Tehsildar is not

sufficient, rather application filed by the petitioner needs to

be disposed of taking into consideration the report submitted

by the Tehsildar and other material available on record.

5. Consequently, in view of the above, the present

petition is disposed of with a direction to respondent No.1 to

decide the application (Annexure P-8) having been filed by the

petitioner, seeking therein implementation/execution of order

dated 19.4.2018 passed in Misc. Case No.10 of 2018

expeditiously, preferably within two weeks from today.

Needless to say, authority concerned while doing the needful

in terms of the instant order shall afford an opportunity of

being heard to the petitioner and pass speaking order.

Liberty reserved to the petitioner to file appropriate

proceedings in appropriate court of law, if he still remains

.

aggrieved. Pending applications, if any, also stand disposed of.

Dasti copy.

                                        (Sandeep Sharma),
                                            Judge
    22nd March, 2021
     (shankar)




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