Himachal Pradesh High Court
Swaroop Chand Dhiman vs Mathew K.C on 25 October, 2021
Bench: Mohammad Rafiq, Sabina
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 25th DAY OF OCTOBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE SABINA
CIVIL WRIT PETITION No.6587 of 2021
Between:-
1. SWAROOP CHAND DHIMAN
SON OF LATE SH. BISHAN DASS,
AGE 80 YEARS, SOLE PROPRIETOR
S.K. DHIMAN AND SONS;
2. RISHI DHIMAN SON OF SWAROOP CHAND
DHIMAN,
BOTH RESIDENTS OF VILLAGE SANOURA,
P.O. GAGGAL, TEHSIL AND DISTRICT
KANGRA, H.P.
.... PETITIONERS
(BY MR. B.C. NEGI, SENIOR ADVOCATE
WITH MR. Y.P. SOOD, ADVOCATE)
AND
1. PUNJAB NATIONAL BANK THROUGH
ITS MANAGER, KOTWALI BAZAR,
DHARAMSHAL, DISTRICT KANGRA, HP.
2. AUTHORISED OFFICER-CUM-CHIEF MANAGER,
PUNJAB NATIONAL BANK, KOTWALI BAZAR,
DHARAMSHAL, DISTRICT KANGRA, HP.
3. MS. MEGHA PATHANIA D/O SH. BALWINDER
PATHANIA, R/O WARD NO.1, VILLAGE THAMBA,
P.O. DURGELLA, TEHSIL SHAHPUR,
DISTRICT KANGRA, H.P.
....RESPONDENTS
(MR. ARVIND SHARMA, ADVOCATE FOR R-1 & R-2).
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2
This petition coming on for admission this day, Hon'ble Mr.
Justice Mohammad Rafiq, passed the following:
.
ORDER
This petition has been filed by Swaroop Chand Dhiman and
Rishi Dhiman, petitioners, praying for setting aside the auction/sale
proceedings conducted by respondent No.2 on 12.8.2021 and sale certificate
(Annexure P-8), dated 23.8.2021, issued in favour of respondent No.3, with a
further prayer to direct respondents No.1 and 2 to restore the possession of the
residential house to the petitioners, built up on the land comprised in Khatta
No.160 min, Khatauni No. 238 min, Khasra Nos. 546, 547, 548, 549, 550,
551, 1020/552, Plot 7, measuring 0-07-06 hectares, situated at Mohal,
Sanoura, Mauza Dugyari, Tehsil and District Kangra, H.P.
2. The petitioners earlier also filed a petition before this Court
being CWP No. 6327 of 2021. This Court relying on the judgment of the
Hon'ble Supreme Court in State Bank of Travancore vs. Mathew K.C.,
(2018) 3 SCC, 85, and ICICI Bank Limited and ors. vs. Umakanta
Mohapatra and ors., (2019) 13 SCC, 497, held the writ petition not
maintainable as the matter was already pending before the Debt Recovery
Tribunal (DRT), which was fixed for 11.10.2021. However, this Court
observed that it is expected that the DRT shall finally decide the applications
filed by the petitioners before it, in accordance with law.
3. The petitioners had to again approach this Court faced with a
peculiar situation as due to the absence of the Presiding Officer in DRT-I at
.
Chandigarh, where the matter is pending. Reference is made to the
communication sent by Registrar, Appellate Tribunal, Delhi to the Presiding
Officer, DRT Jaipur, conveying that since the posts of Presiding Officers of
DRT-I, II and III, Delhi and also of DRT-I, II & III, Chandigarh are lying
vacant and no additional charges of these DRTs has been entrusted/assigned by
r to
the department of Financial Services, the Presiding Officer, DRT, Jaipur is
nominated to deal with the extremely urgent cases of DRT-I, II and III, Delhi
and also of DRT-I, II & III, Chandigarh, till further orders. However,
subsequently, a public notice was issued by the Registrar of DRT-I,
Chandigarh, on 5.10.2021 (Annexure P-16), with reference to the aforesaid
communication dated 4.10.2021, conveying that the Debt Recovery Appellate
Tribunal has withdrawn the said communication regarding nomination of the
Presiding Officer, DRT, Jaipur, to deal with the extremely urgent cases of
DRT-I, Chandigarh.
4. Learned counsel for respondents No.1 and 2-Bank, submitted
that the remedy of the petitioners available in such a situation is to approach
the Presiding Officer DRT under Section 17A (2) of The Recovery of Debts
Due to Banks and Financial Institutions Act, 1993, and not this Court. It is
submitted that not only the final auction has taken place on 12.8.2021, but the
sale certificate has also been issued in favour of respondent No.3 on
23.8.2021. Initially the possession of the property was taken by the
respondent-Bank on 3.9.2021. The petitioners then approached the Court of
Senior Civil Judge, Kangra, Himachal Pradesh. Even though that Court did
.
not had any jurisdiction in the matter, yet it entertained the suit for declaration
and injunction and issued a mandatory injunction directing the restoration of
possession of the property to the petitioners and therefore, the locks and seal
of the respondent-Bank was broken/opened and the possession was restored
back to the petitioner. This Court had taken a very serious view of the matter
5.
r to
in the earlier writ petition for such conduct of the Judicial Officer in its order
dated 5.10.2021 and called for the explanation of the said Judicial Officer.
Learned counsel for the respondents further argued that
respondent No.2 has now issued notice dated 18.10.2021 (Annexure P-17) to
the petitioners to remove their house hold goods/items/personal belongings
lying in the property in question on or before 26.10.2021. Although, part of
the belongings have been removed, but some are still lying there.
6. The learned counsel for the petitioners, at this stage, submitted
that the aforesaid civil suit is listed before the trial Court on 2.11.2021 and the
petitioners have given undertaking in the present writ petition that they will
withdraw the Civil Suit from the said Court.
7. In the normal course, this Court having already held that the
petitioners have alternative efficacious remedy available to them to approach
the DRT and they having already approached the Tribunal by filing
appropriate application, the present writ petition could not have been
entertained on the same subject matter, but in the peculiar facts and
circumstances of the case, the remedy said to be available to the petitioners
before DRT, in fact, is not available in the absence of the posting of any
.
Presiding Officer, not only in DRT-I, and other two DRTs at Chandigarh,
particularly when the additional charge given to DRT Jaipur for entertaining
the extremely urgent matters also stands withdrawn. Such remedy cannot be
said to be efficacious in the present circumstances.
8. In view of the above, the present writ petition is disposed of with
liberty to the petitioners to approach Debt Recovery Appellate Tribunal within
a period of 15 days from today, which shall pass the appropriate orders on the
application of the petitioners, in accordance with law. Respondents No.1 and
2, shall till then maintain status quo with regard to the property in question.
However, this order shall come to an end on the expiry of 15 days i.e. on
8.11.2021. It would be for the DRAT to pass any further order thereafter in its
discretion, in accordance with law. Pending application(s), if any, shall also
stand disposed of.
Copy Dasti.
(Mohammad Rafiq)
Chief Justice
(Sabina)
October 25, 2021(ps/vh) Judge
