Mohammad Maqbool Sheikh vs Hdfc Bank Ltd
2021 Latest Caselaw 890 j&K/2

                                                                   S.No. 101
                                                                  Suppl. 1 List



     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                     AT SRINAGAR

                                                     CM(M) 118/2021
                                                    CM No. 5288/2021
                                                   Caveat No. 1056/2021
Mohammad Maqbool Sheikh

                                                          ...Petitioner(s)

                   Through: Mr. Nisar Ahmad, Adv.

                                 V/s
HDFC Bank Ltd.
                                                        ...Respondent(s)
                   Through: Mr. Shahbaz Sikander, for respt./caveator.

Coram:HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                                       ORDER

(Open Court)

1. Caveat, as filed, shall stand discharged.

2. In this petition filed under Article 227 of the Constitution of India,

petitioner challenges the proceedings initiated against him by

respondent-Bank under SARFAESI Act, inter-alia on the ground that

the objections filed by him, after issuance of notice under Section

13(2) of the Act, were not considered, and, that the Bank had

proceeded to pass the possession notice under Section 13(4) of the

Act.

3. The argument advanced by learned counsel for the petitioner was that

the representation filed by the petitioner was considered but after the

issuance of notice under Section 13(4) of the Act.

4. Counsel for the respondent-caveator, on the other hand, stated that the

representation filed by the petitioner had in-fact been received sixty

days after the issuance of notice under Section 13(2), and, that the

rejection order was passed on 10.02.2021 which was communicated to

the petitioner by virtue of communication bearing

Ref.No.HDFC/Sar/Rply/21 dated 10.02.2021. It is, thus, stated that

there was no statutory obstruction for the Bank to resort to the

provisions of SARFAESI Act.

5. Counsel for the petitioner further stated that the proceedings under

SARFAESI Act were not maintainable in view of the fact that the

Bank was pursuing execution proceedings initiated pursuant to the

settlement arrived at between the parties before the Lok Adalat. It is

stated that during the currency of the execution proceedings, the Bank

could not have resorted to the proceedings under SARFAESI Act.

Reliance in this regard has been placed on the judgment of a co-

ordinate Bench of this Court dated 12.10.2017 (COD No.105/2015

Abdul Aziz Mir Vs. Suhail Nabi & Ors.), which judgment was based

on the doctrine of election. It is stated that on that principle, the Bank

could not have resorted to the provisions of SARFAESI Act. Apart

from this, it was urged that the asset which was mortgaged with the

Bank was in the nature of agriculture land, which was otherwise

outside the purview of the said Act. Reliance in this regard was placed

on Section 31(i) of the Act. However, learned counsel for the

petitioner has not placed on record any document which would

suggest that the land in question, which is the subject matter, was in-

fact agriculture land.

6. Notice. Mr. Shahbaz, learned counsel accepts notice on behalf of the

respondents.

7. With a view to ensure the adequate opportunity to the petitioner to

establish the case with regard to the land being agriculture in

character, it would be appropriate to give one opportunity of two

weeks to place on record documents in support of his arguments.

8. In the meantime, it is agreed that the petitioner would deposit Rs.5.00

lacs within 15 days from today and another Rs.5.00 lacs within 15

days thereafter, with the Bank. In that event, the proceedings initiated

by the Bank would remain stayed. However, in case the said amount

is not deposited within the time prescribed, the Bank shall be free to

proceed in the matter.

9. List on 05.10.2021.

(DHIRAJ SINGH THAKUR) JUDGE Srinagar 12.08.2021 Muzammil. Q

MUZAMIL QADIR 2021.08.16 15:33 I attest to the accuracy and integrity of this document