Himachal Pradesh High Court
________________________________________________________ vs The Jammu And Kashmir Bank Ltd. And ... on 26 May, 2025
( 2025:HHC:16077 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 8675 of 2025
Date of Decision: 26.05.2025
________________________________________________________
M/s Hotel Nature Valley ....Petitioner.
Versus
The Jammu and Kashmir Bank Ltd. and others
...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice
Hon'ble Mr. Justice Ranjan Sharma, Judge
Whether approved for reporting? 1
For the petitioner: Mr. Vikrant Thakur, Advocate.
For the respondents: Mr. Balwant Kukreja and Ms.Drishti
Sirswal, Advocates, for respondents
No.1 to 3.
G.S. Sandhawalia, Chief Justice (Oral)
Caveat Petition No. 320 of 2025
Discharged and disposed of.
In the present Writ petition, challenge is to the order
dated 25.02.2025 (Annexure P-33) passed by the respondent- Bank
and the resultant communication dated 08.05.2023 (Annexure P-34),
wherein, the petitioner was put to notice that physical possession of
secured asset as such would be taken over on 21.05.2025.
Whether reporters of Local Papers may be allowed to see the judgment?
2) Perusal of the paper book would go on to show that
notice dated 06.06.2023 under section 13(2) of the Secrutisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short "SARFAESI Act") (Annexure P-12) was
issued, wherein, the Bank as such put the petitioner on notice that
there was outstanding sum of Rs.12,24,35,281.92 as on 01.06.2023,
against the credit facilities availed in seven accounts and had been
classified by the Bank as Non-Performing Asset on 31.12.2023, as per
the guidelines of the Reserve Bank of India.
3) The 1st reply to the same was sent on 17.02.2024
(Annexure P-13) by the petitioner. The Bank also replied to the same
on 09.08.2023 (Annexure P-15), whereby an opportunity was given to
the petitioner to come up with some resolution plans before the bank.
4) The 2nd detailed reply of over 47 paragraphs was sent by
the petitioner on 04.09.2024 (Annexure P-17), but with no proposal
how to pay back the amount or regularize the account.
5) Apparently, notice was issued on 12.09.2023 (Annexure
P-20), under Section 13(4) of the Act, whereby the symbolic
possession as such of the mortgaged property was to be taken. The
Bank thereafter approached the District Magistrate, Chamba under
Section 14 for giving effect to the order and on 29.01.2024 (P-24) the
Sub-Divisional Magistrate, Dalhousie was authorized to assist the
Bank in taking possession of the assets, subject to the provisions of
Section 31 of SARFAESI Act, 2002.
6) The petitioner thereafter approached the Tribunal by
filing S.A/83/2024, in which a settlement had been arrived at and a
deposit of two crores was to be made, firstly by 30th June, 2024 and
thereafter the applicant would make the payment as per the terms and
conditions of the original sanctions dated 28.02.2018 and 11.09.2019.
The order dated 15.03.2024 passed by the Debts Recovery Tribunal-I,
Chandigarh (DRT) (Annexure P-27)), reads as under:-
"The possession of the secured asset i.e. Hotel
Nature Valley was fixed up for today. However, the
parties have settled their dispute. As per settlement
applicant would deposit Rs.25 lacs on or before
31.03.2024 and further payment of Rs.1.75 crores every
quarter from 30.06.2024. The first installment would be
paid on or before 30.06.2024, till the overdue sum is paid
to the bank. Thereafter, applicant would make the
payment as per the terms and conditions of the original
sanction dated 28.02.2018 and 11.09.2019, in all the loan
accounts. In case there is any default in payment as
agreed to by the parties, the bank would be free to
proceed against the borrowers and guarantors, as per
law.
In view of the above mentioned terms, the SA
stands disposed of. File be consigned to record room after
due compliance."
7) Apparently, the petitioner had filed an application
(MA/70/2024) in SA/83/2024 for extension of time and on
04.07.2024, the DRT gave the following concession:
"Registrar has put up this matter before me.
As per the order dated 15.03.2024, passed in SA
No.83/2024 applicant had to deposit Rs.2.00 Crore by
30.06.2024. So far, he has deposited Rs.75.00 Lacs and
Rs.1.25 Crore has not been paid as undertaken by him.
Counsel for the applicant states that Sh. Ajay Khanka,
has met with an accident and has fractured his spine.
On account of this the could not make the repayment.
Mr. Gupta, states that applicant would pay
Rs.50.00 Lacs within 2 weeks from today i.e. on or
before 18.07.2024; another Sum of Rs.50.00 Lacs by
07.08.2024 and remaining Rs.25.00 Lacs by 14.08.2024.
Subject to honoring the commitment, bank would
not take the possession. However, in case applicant
commits any default in making the repayment on due
date, he would surrender the possession. Applicant
would also file undertaking within a week from today.
Accordingly, the MA stands disposed of.
File be consigned to record room after due
compliance."
8) It is pertinent to mention that the said order has now been
produced by the Bank and the petitioner chose not to append the
same, though he had filed the said application, which would be clear
from the presence as such of the counsel for the applicant.
Apparently, there seems to have no commitment to the said
undertaking.
9) From perusal of paper book, it seems that in the
intervening period, the petitioner filed CWP No.759 of 2025 before
the learned Single Judge, wherein an impression as such was given
that his representation had not been decided without bringing on
record the order dated 04.07.2024 and the fact that it had defaulted.
Resultantly, the learned Single Judge passed an order that the same be
done by passing a speaking order, which is now under challenge dated
25.02.2025 (Annexure P-33).
10) From perusal of notice dated 08.05.2025 (Annexure P-
34), it would be clear that the Bank again started proceedings to take
physical possession, since it secured an order under Section 14 of
SARFAESI Act from District Magistrate, Chamba.
11) Even from the order now under challenge dated
25.02.2025 (Annexure P-33) it would go on to show that as per order
dated 04.07.2024, the commitment had not been made by the
petitioner and he only deposited 50 lakhs on 20.07.2024.The relevant
portion whereof reads as under:
" ix) While the applicant failed to honor the
commitment of depositing the agreed amount within
stipulated timeline, an application was moved by her
before DRT stating that her husband Mr. Ajay Khanka
met with an accident and fractured his spine which was
the reason of her not depositing the amount on due date.
Out of the total amount of Rs2.00 Crores due by 30-06-
2024, the applicant deposited only Rs75.00 lacs. The
DRT accepting the plea of the borrower ordered that the
applicant would pay Rs50.00 Lacs within 02 weeks i.e on
or before 18-07-2024, another sum of Rs50.00 lacs by
07-08-2024 and remaining Rs25.00 lacs by 14-08-
2024.11 was further ordered by the DRT that subject to
honoring the commitment, bank would not take the
possession. However, in case applicant commits any
default in making repayment on due date, he would
surrender the possession. However, the borrower failed
again and deposited only Rs50.00 lacs on 20-07-2024."
The factual aspect is that as informed by the Bank that on 21.05.2025,
the Bank had gone to take physical possession and again an
undertaking dated 21.05.2025 was given that a sum of Rupees five
crores will be paid on 23.05.2025, otherwise possession will be
handed over. It was also mentioned therein that the petitioner would
not make any fresh booking of the Hotel rooms and the guests already
staying in the Hotel shall be accommodated at some other Hotel,
which request apparently the bank had accepted.
12) In such circumstances, we are of the considered opinion
that the petitioner having opted for the remedy before the DRT and the
proceedings under Section 13(4) of the Act have already been
challanged, it is not open for this Court to start parallel proceedings
and it is for the petitioner to revive his Securitization Application
(S.A) before the DRT.
13) The Apex Court in South Indian Bank Ltd. and others
vs. Naveen Mathew Philip and another, reported in 2023 SCC
Online SC 435, has also held that the extra ordinary writ jurisdiction
is not to be exercised at the mere asking, especially once there is
alternative remedy as such. Relevant paragraph of the said judgment
reads as under:
"18. While doing so, we are conscious of the fact that
the powers conferred under Article 226 of the
Constitution of India are rather wide but are required
to be exercised only in extraordinary circumstances in
matters pertaining to proceedings and adjudicatory
scheme qua a statute, more so in commercial matters
involving a lender and a borrower, when the
legislature has provided for a specific mechanism for
appropriate redressal."
14) In such circumstances, keeping in view, the above we are
of the considered opinion that this is not a fit case as such to exercise
extra ordinary writ jurisdiction. Accordingly, the writ petition stands
disposed of with liberty to the petitioner to revive his alternate
remedy as per law.
Pending applications, if any, also stand disposed of.
( G.S. Sandhawalia )
Chief Justice
26th May, 2025 ( Ranjan Sharma )
(priti) Judge
