Sulechana Kumari, W/O Shri ... vs State Of Rajasthan
2022 Latest Caselaw 4290 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 5770/2019

Sulechana Kumari, W/o Shri Pradeep Kumar, Aged About 25
Years, Resident Of 314, 3rd Floor, Aradhan Residency, Manglam
City, Hathoj, Kalwar Road, Jaipur, Rajasthan.
                                                                    ----Petitioner
                                    Versus
1.      State Of Rajasthan, Through District Magistrate & District
        Collectorate, Collectorate, Bani Park, Jaipur, Rajasthan -
        302 001.
2.      Shriram Housing Finance Limited, Regd. Office At 123,
        Angappa Naichen Street Chennai And Branch Office At E-
        2, 3rd Floor, Sector-I, Noida, Uttar Pradesh, through its
        Branch Manager.
3.      Om Sokhal Builders And Construction Private Limited,
        through its Director Shri Ram Gopal Sokhal, Regd. Office
        108, Ganpati Enclave, Central Spine, Vidhyadhar Nagar,
        Jaipur, Rajasthan.
4.      Ram Gopal Sokhal, Resident Of 333, Kana Ram Nagar,
        Vijayabari, Dher Ke Balaji, Jaipur, Rajasthan.
5.      Nand Lal Sokhal, Resident Of 334, Kana Ram Nagar,
        Vijayabari, Dher Ke Balaji, Jaipur, Rajasthan.
6.      Ram Naryan Kanawal, Resident Of 333, Kana Ram Nagar,
        Vijayabari, Dher Ke Balaji, Jaipur, Rajasthan
                                                                 ----Respondents

For Petitioner(s)         :     Mr.Digvijay Anand
For Respondent(s)         :     Mr.Jitendra Mishra with Mr. Shubham
                                Sharma



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                     Order

29/06/2022

This writ petition has been filed by the petitioner with the

following prayer :

(2 of 5) [CW-5770/2019]

"(i) quash and set aside the order passed by respondent No.1, on January 29, 2019, for taking over possession of the petitioner's flat bearing NO.314, 3rd Floor, Aradhana Residency, Plot No.G-01, Manglam City, Hathoj, Kalwar Road, Jaipur.

(ii) the respondent No.2, may be directed not to act, take any coercive action or proceed further against the petitioner in pursuance of the order passed by respondent No.1, on January 29, 2019.

(iii) The respondent No.2, may be directed to initiate, proceed and recover all its outstanding amount from the builder. The respondent No.2, may be further directed to pay all cost, interest, charges and expenses to the petitioner."

The matter comes up on an application, filed by the

respondent No.2 - Shriram Housing Finance Limited, for vacation

of ex-parte interim order dated 25th March, 2019.

Learned counsel for the respondent submitted that husband

of the petitioner - Pradeep Kumar has filed SB Civil Writ Petition

No.4219/2019 (Pradeep Kumar Vs. State of Rajasthan &

Ors.) before this Court and this Court, on 7 th March, 2019.

dismissed the writ petition.

Learned counsel for the respondent submitted that the same

order dated 29th January, 2019, passed by the District Collector

and District Magistrate, Jaipur in Application No.380/2018 was put

to challenge before this Court and this Court, after considering the

entire issue, has dismissed the petition.

Learned counsel submitted that the petitioner is guilty of

suppressing the material facts from this Court and after dismissal

of the said petition, the instant petition has been filed on 19 th

March, 2019.

Learned counsel for the petitioner submitted that the present

petition has disclosed filing of the earlier writ petition, filed by

(3 of 5) [CW-5770/2019]

husband of the petitioner and as such, he refers to Note No.1,

appended to the writ petition after prayer clause.

Learned counsel submitted that the petitioner has never

concealed any fact from the Court and as such, the preliminary

objection, raised by learned counsel for the respondent(s), may

not be entertained.

I have considered the submissions made by learned counsel

for the parties and perused the record of the case.

This Court finds that the present writ petition needs to be

decided finally, as the interim order is continuing since 25 th March,

2019.

Learned counsel for the petitioner submitted that in the

present case, as per Section 23 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002 (for short "the SARFAESI Act"),

the particulars of every transaction of securitisation, assets

reconstruction or creation of security interest is required to be

filed in the Central Registrar in the manner provided in the Act.

Learned counsel submitted that in the present case, there

has been no creation of security interest and as such, learned

counsel also refers to the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest

(Central Registry) Rules, 2011 (for short "the Rules of

2011").

Learned counsel submits that as per Rule 4 of the Rules of

2011, the particulars of every transaction is required to be

registered under Sections 23, 24 & 25 of the SARFAESI Act and in

the present case, the respondents have not followed the

mandatory requirement of creation of security interest in respect

(4 of 5) [CW-5770/2019]

of the property, of which, the possession is being taken by the

respondents.

Learned counsel further submitted that the petitioner, in the

instant case, is not a borrower and as such, the order passed by

the District Collector under Section 14 of SARFAESI Act, is prima

facie illegal.

Learned counsel submitted that until the petitioner is treated

as borrower, no such step can be taken by the respondents under

the SARFAESI Act.

Learned counsel for the petitioner submitted that husband of

the petitioner may be in his individual capacity, being a borrower,

might have filed the writ petition, as far as right of the petitioner

to file the writ petition is concerned, the same cannot be taken

away and such order cannot be passed.

I have considered the submissions made by learned counsel

for the parties and perused the record of the case.

This Court, while deciding about validity of the earlier order

dated 29.01.2019, has considered the judgment passed by the

Apex Court in the case of Authorized Officer, State Bank of

Travancore & Anr. Vs. Mathew K.C. [(2018) 3 SCC 85] and

other judgments, the Apex Court has clearly held that as far as

proceedings under the SARFAESI Act are taken, the writ

jurisdiction of the Court under Article 226 of the Constitution of

India, is not to be exercised the by the High Courts.

The submission of learned counsel for the petitioner that the

petitioner is not borrower or valid mortgage has not been created,

this Court finds that it will be too late to raise this objection by the

petitioner, as in compliance of the notice issued to the borrower

under Section 13(2) of the SARFAESI Act, subsequent proceedings

(5 of 5) [CW-5770/2019]

had already been initiated, which has resulted in final order under

Section 14 of the Act and this Court is afraid to accept the

submissions made by the learned counsel for the petitioner.

Accordingly, this Court finds that the dispute, raised in the

present writ petition, is already covered by the judgment passed

by this Court in the case of Pradeep Kumar (supra).

Accordingly, the writ petition is dismissed. The interim order

dated 25th March, 2019 is vacated.

(ASHOK KUMAR GAUR),J

Preeti Asopa /Bhavnesh/26

Powered by TCPDF (www.tcpdf.org)