Rajasthan High Court
Dewan Housing Financial ... vs M/S Vidhya Bharti Sansthan on 17 December, 2021
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 14769/2021
Dewan Housing Financial Corporation Limited, Now Name
Changed To Piramal Capital And Housing Finance Limited Having
Its Registered House At Warden House, 2 nd Floor, Sir P.M. Road,
Fort, Mumbai, Maharashtra - 400001 And Its Office At Jaipur
Tower, 302, 3rd Floor, M.I. Road, Jaipur A Registered Company
Under Companies Act Through Its Authorised Signatory Shri
Mukesh Kumar Yadav S/o Shri Ramniwas Yadav, Piramal Capital
And Housing Finance Limited, 302, 3 rd Floor, Jaipur Tower, M.I.
Road, Opposite Air, Jaipur - Rajasthan.
----Petitioner
Versus
M/s Vidhya Bharti Sansthan, Through Its Director Shri Balwant
Singh Kirana Having Its Office At Vidya Bharti Sansthan, Sector
C Todi Nagar, Sikar 332001 (Rajasthan)
----Respondent
For Petitioner(s) : Mr. Ajeet Bhandari, Adv.
Mr. Jitendra Mishra, Adv.
Mr. Jai Sharma, Adv.
For Respondent(s) : Mr. Rakesh Kumar, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
17/12/2021
Learned counsel for the petitioner submitted that by the
impugned order dated 17.11.2021, while passing order on IA
No.1459/2021, a direction has been given by the Presiding Officer,
Debts Recovery Tribunal, Jaipur to restore the possession of
School situated at Patta No.1506/1 & 1506/2 only within three
working days.
Learned counsel for the petitioner submitted that while
passing the said order, the borrower was also directed to deposit
(2 of 5) [CW-14769/2021]
the amount of Rs.20,00,000/- within two working days and further
to deposit the amount of Rs.10,00,000/- within next two working
days, which was to be kept in No-lien Account, till further orders.
Learned counsel for the petitioner submitted that the
petitioner preferred Review Petition before the Debt Recovery
Tribunal, Jaipur for recalling the order dated 17.11.2021, as no
direction could have been given by the Debt Recovery Tribunal for
restoring the possession of the property of which possession has
already been taken by the petitioner.
Learned counsel for the petitioner submitted that the I.A.
No.1644/2021 filed by the respondent-applicant has also been
dismissed by the Debts Recovery Tribunal, Jaipur vide order dated
30.11.2021.
Learned counsel for the petitioner submitted that while
deciding the Review Petition, the Debts Recovery Tribunal, directed
that possession was to be handed over within six days and
Rs.30,00,000/- was required to be deposited by the respondent.
Learned counsel for the petitioner submitted that as per
provision contained in Section 17(3) of SARFAESI Act, 2002, the
direction to restore the possession could have only been given
after final determination of the rights of the parties and after
declaring the recourse of taking measures of sub-Section (4) of
Section 13, as invalid.
Learned counsel for the petitioner places reliance on the
judgment of Madras High Court of Full Bench in the case of M/s
Lakshmi Shankar Mills (P) Ltd. & Ors. Versus Authorised
Officer/Chief Manager, Indian Bank & Ors., reported in AIR
2008 Madras 181.
(3 of 5) [CW-14769/2021]
Learned counsel for the petitioner also refers to an order
passed by the Karnataka High Court in the case of Syndicate
Bank Versus Basalingappa & Ors., AIR 2007 Karnataka 125
and order passed by the Division Bench of Madras High Court in
the case of M/s Gugan Paper Mills Ltd. Versus The Presiding
Officer & Ors.
Learned counsel for the petitioner on the strength of the said
judgments, submitted that the order passed by the Debts
Recovery Tribunal is against the provisions contained in the Act of
2002 of giving back the possession to the borrower without
deciding the application finally.
Learned counsel-Mr. Rakesh Kumar appearing for the
respondent submitted that an application has been filed before
this Court for dismissing the writ petition as the petitioner
themselves have not come before this Court with clean hands and
further, the writ petition filed by the petitioner is not competent
which can be entertained on account of locus of the petitioner.
Learned counsel for the respondent submitted that the
petitioner Deewan Housing Financial Corporation Limited is no
more in existence and some other entity i.e. Piramal Capital And
Housing Finance Limited has now come in existence and as such in
absence of proper resolution, the filing of writ petition by
incompetent person, could not be entertained.
Learned counsel for the respondent places reliance on a
judgment passed by the Apex Court in the case of State Bank of
Travancore Versus Kingston Computers India Private
Limited, (2011) 11 Supreme Court Cases 524.
Learned counsel for the respondent further submitted that
the Punjab & Haryana High Court has considered the similar issue
(4 of 5) [CW-14769/2021]
in the case of Arun Kumar Arora & Anr. Versus Union of
India (UOI) & Ors., AIR 2006 PH 211.
Learned counsel for the respondent on the strength of the
said judgment, submitted that the Punjab & Haryana High Court
has granted interim relief under Section 17 of the Act of 2002 and
if the possession of the property is taken, the Debts Recovery
Tribunal still has a right to pass interim order of restoring the
possession.
Learned counsel further submitted that the property of the
respondent is not only the school on which the petitioner should
have first lien to sell the property and there are other properties
as well, which are of high market value than the money involved,
alleged to be due against the respondent.
Learned counsel further submitted that the petitioner-Bank is
determined to take the possession and put the property on sale in
which renowned school is being run by the respondent and in
order to spoil the reputation of the respondent in running the
school, the impugned action has been taken to sale the property
situated in the school building.
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
The matter requires consideration.
This Court also asked learned counsel-Mr. Rakesh Kumar
appearing for the respondent to seek instructions as whether his
client is prepared to pay the installments, which are due when his
account was declare NPA. However, learned counsel for the
respondent submitted that some time may be granted to seek
necessary instructions.
(5 of 5) [CW-14769/2021]
This Court is prima facie satisfied that the orders passed by
the Debts Recovery Tribunal on 17.11.2021 & 30.11.2021 are not
sustainable in the eye of law in view of the judgment passed by
the Madras High Court in the case of M/s Lakshmi Shankar Mills
(P) Ltd. & Ors. Versus Authorised Officer/Chief Manager, Indian
Bank & Ors. (supra) and as such this Court stays the effect and
operation of the orders dated 17.11.2021 & 30.11.2021.
However, it is always open for the respondent to make a
suitable offer to the petitioner-Bank, if they want to reconcile their
accounts and intends to repay the money.
List this case on 17.01.2022.
(ASHOK KUMAR GAUR),J
Ramesh Vaishnav /86
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