Jammu & Kashmir High Court - Srinagar Bench
Ghulam Rasool Gorsi & Anr vs District Magistrate on 6 February, 2023
Serial No. 34
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 172/2023
CM No. 259/2023
Ghulam Rasool Gorsi & Anr.
... Petitioner(s)
Through: -
Mr M. A. Qayoom, Advocate.
V/s
District Magistrate, Budgam & Ors.
... Respondent(s)
Through: -
Mr Hilal Ahmad Wani, AAG; and
Mr Adil Asmi, Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge
Hon'ble Mr Justice Mohan Lal, Judge
(ORDER)
06.02.2023
(Oswal-J):
01. In this Petition, filed under Article 226 of the Constitution of
India, the Petitioners have challenged the validity of Orders dated 25th of
July, 2022 issued by the District Magistrate, Budgam/ Respondent No.1
herein, whereby the Tehsildar, Charar-i-Sharief, Budgam was directed to
assist the Bank authorities to take over the mortgaged properties of the
Petitioners. The Orders aforesaid have been impugned on the ground that
the same have been issued in utter disregard to the provisions contained in
Section 14 of the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short "the Act of 2002")
itself, more particularly when the Petitioners have already liquidated the
whole amount.
02. Mr M. A. Qayoom, the learned Counsel for the Petitioners,
vehemently argued that the Petitioners have no remedy except to assail the
WP (C) No. 172/2023
CM No. 259/2023
Orders passed under Section 14 of the Act of 2002 by the Respondent No.1
under Article 226 of the Constitution of India. It is contended that the
provisions contained under Section 14 of the Act of 2002 have not been
complied with by the Respondent No.1 before passing the Orders impugned
as the Orders passed by the Respondent No.1 are absolutely silent with
regard to compliance of the proviso appended to Section 14 of the Act of
2002. It is further argued that the impugned Orders are not sustainable in
the eyes of law merely because of the fact that reference to notice under
Section 13(4) of the Act of 2002 has been made by the Respondent No.1 in
both the Orders impugned.
03. Heard and perused the record.
04. In terms of Order dated 1st of February, 2023, this Court had
directed Mr Adil Asmi, the learned Counsel appearing for the Respondent-
Bank, to report instructions. The learned Counsel has, accordingly, reported
that the Petitioners have not liquidated the loan amount.
05. The Petitioners have mainly raised their grievance with regard
to the Orders dated 25th of July, 2022 issued by the Respondent No.1
directing the Tehsildar concerned to assist the banking authorities to take
over the possession of the mortgaged properties. Further, the Petitioners
have also sought the quashing of Order dated 5 th of January, 2023, along
with the impugned Orders. It is evident from the said possession notice
dated 5th of January, 2023 that the possession of the secured assets has been
taken over by the Respondent-Bank. Thus, it is clear beyond any shadow of
doubt that, after the Orders dated 25th of July, 2022 were issued by the
Respondent No.1, the possession of the secured assets has been taken over
by the Respondent-Bank. Once the possession has been taken over by the
Respondent-Bank, then the Petitioners ought to have availed the statutory
remedy as provided under Section 17 of the Act of 2002 for seeking the
redressal of their grievance(s).
06. It is pertinent to note here that, in order to buttress his
arguments, Mr M. A. Qayoom, the learned Counsel for the Petitioners, has
WP (C) No. 172/2023
CM No. 259/2023
relied upon the Judgment passed by the Apex Court in case reported as
'(2014) 6 Supreme Court Cases 1'; and the one passed by a Coordinate
Division Bench of this Court in WP (C) No. 2018/2022 titled 'M/s New
Kashmir Fruit Centre v. Authorized Officer, Impaired Assets, Portfolio
& Ors.'. We have examined the aforesaid Judgments as relied upon by Mr
Qayoom and have found that, in the said Judgments, the possession of the
secured assets was not taken over by the secured creditors and the orders
under Section 14 of the Act of 2002 were passed by the concerned
authorities for assisting the secured creditor to take possession of the
secured assets, as such, these Judgments are not applicable to the facts and
circumstances of the present case.
07. In view of above, no case for indulgence is made out.
Resultantly, the Writ Petition, along with the connected CM, is dismissed
with liberty to the Petitioners to avail appropriate remedy as may be
available to them under law.
08. Interim direction(s), if any subsisting as on date, shall stand
vacated.
09. There shall, however, be no order as to costs.
(Mohan Lal) (Rajnesh Oswal)
Judge Judge
SRINAGAR
February 6th, 2023
"TAHIR"
