Dr. Mrs. Amita Verma vs The Authorized Officer
2023 Latest Caselaw 3143 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.1250 of 2019
                                         In
                   Civil Writ Jurisdiction Case No.17299 of 2017
     ======================================================

Dr. Mrs. Amita Verma, W/o Dr. Ashok Kumar, R/o Amrit Nursing Home, P.O. Rajkumar Ganj, P.S. L.N. Mithila University Campus Darbhanga , Distt. Darbhanga.

... ... Appellant/s

Versus

1. The Authorized Officer, Indian Bank, Patna Main Branch, Biscomaun Bhawan, West Gandhi Maidan, Patna.

2. Branch Manager, Indian Bank, Patna Main Branch, Biscomaun Bhawan, West Gandhi Maidan, Patna.

3. M/s Kamna Enterprises, Khasmahal Road No. 1, Chiraiyatand Road, Patna through its proprietor Shri Anand Shankar, S/o Late Hardeo Narayan Sinha, R/o Khasmahal Road No. 1, Chirraiyatand Road, Patna, presently residing at 403, Rama Braj Apartment near Alpana Market, Patliputra Colony, Patna.

4. Sri Hardeo Narayan Sinha (since deceased), S/o Late Amarchand Lal, through legal heirs, R/o Village-Simra, P.S.-Sadar, Distt.-Darbhanga.

5. Smt. Kumkum Sahay, D/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-Sadar, Distt.-Darbhanga.

6. Shri Krishna Mohan Kumar Sinha, S/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-Sadar, Distt.-Darbhanga.

7. Smt. Rupa Sinha, D/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-

Sadar, Distt.-Darbhanga.

8. Smt. Seema Sinha, D/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-

Sadar, Distt.-Darbhanga.

9. Smt. Indrani Kumari, D/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-Sadar, Distt.-Darbhanga.

10. Shri Anand Shankar, S/o Late Hardeo Narayan Sinha, R/o Village-Simra, P.S.-Sadar, Distt.-Darbhanga.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr.Arbind Kumar Jha, Advocate For the Respondent/s : Mr.Dr. Binay Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court L.P.A No.1250 of 2019 dt.20-07-2023

Date : 20-07-2023

Two writ petitions were disposed of by a common

order. The appellant challenged the order passed in the writ

petition filed by her. The bank, which was the petitioner in the

other case, has not filed an appeal.

2. The authorized officer of the respondent Bank

had initiated action against the borrower and taken over

possession of the secured assets under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for brevity 'SARFAESI Act'). The secured

assets were also sold to the appellant herein. The firm, which

was the borrower, being M/s. Kamna Enterprises, approached

the Debt Recovery Tribunal, Patna under Section-17 of the Act

of 2002. The application filed by the borrower was allowed.

One of the grounds taken up before the High Court was of

limitation and the lack of power on the Debt Recovery Tribunal

(for brevity 'D.R.T.') to condone the delay. However, the

learned counsel for the bank fairly submitted that the

applicability of the Limitation Act, 1963 to the proceedings

under Section-17 of the SARFAESI Act was found by this Court

in Rahmatullah Vs. The Authorized Officer-cum-Chief

Manager, Central Bank of India & Ors. in C.W.J.C. No.17999 Patna High Court L.P.A No.1250 of 2019 dt.20-07-2023

of 2017. The said ground was not pressed, but however, it was

stated that there were a number of other grounds raised against

the impugned order of the D.R.T. The learned Judge, who

considered the matter, was of the opinion that since there was an

appellate forum and the caution expressed in United Bank of

India Vs. Satyawati Tondon & Ors., reported in (2010) 8 SCC

110, it was only appropriate that the parties be relegated to the

appellate remedies. The ground, insofar as the borrower could

not have maintained a securitization application in absence of

the owner of the property, who had mortgaged the same, was

found to be untenable, especially noticing the words 'Any

person aggrieved' in Section-17(1) of the SARFAESI Act. The

writ petitions were rejected, giving liberty to both the parties to

approach the Debt Recovery Appellate Tribunal, Allahabad

within a period of 30 days from the date of disposal of the writ

petitions, upon which the question of any delay occasioned in

filing the appeal was directed to be considered, keeping in view

the fact of the pending writ petitions before the High Court.

3. We heard the learned counsel for the parties and

it was the argument of the learned counsel for the appellant that

without the junction of the owner of the property, who created

the security interest, there could not have been an application Patna High Court L.P.A No.1250 of 2019 dt.20-07-2023

filed under Section-17 of the SARFAESI Act.

4. We cannot countenance the contention raised by

the appellant and we agree with the learned Single Judge that

any person aggrieved could take up the matter before the D.R.T.

insofar as a proceeding under the SARFAESI Act. We also

notice that the proprietor of the firm was the son of the

guarantor who was no more. It is admitted by the appellant that

the proprietor of the firm had an interest in the property after the

death of his father. We say this only to put the matter in the

correct perspective and it is not as if the borrower, who had

mortgaged the property of another, could not have filed the

application before the D.R.T. under Section-17(1). When the

proceedings under the SARFAESI Act is taken, the borrower

and the mortgagor are both parties interested in the proceedings.

Merely because mortgagor has not been impleaded, it does not

follow that the borrower cannot file an application under

Section-17.

5. In the present case, we only add that the

borrower, the son of the mortgagor, who died even before the

security proceedings were initiated, had an interest in the

property along with the other legal heirs of the deceased

mortgagor. We find absolutely no reason to entertain the appeal.

Patna High Court L.P.A No.1250 of 2019 dt.20-07-2023

6. We also notice the submission of the respondent

bank that they have already approached the D.R.A.T., Allahabad

with an appeal, as directed by the learned Single Judge.

7. The L.P.A. stands dismissed.

(K. Vinod Chandran, CJ)

( Partha Sarthy, J)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          27.07.2023
Transmission Date