Uttarakhand High Court
Mr. Abhijay Negi vs United Bank Of India And Another on 11 August, 2021
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
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Registrar's order with
Signatures
WPMS No.1573 of 2021
Hon'ble Sharad Kumar Sharma, J.
(Through Hybrid Mode)
Mr. Abhijay Negi, Advocate for the
petitioner.
Mr. Ashish Joshi, Advocate for the
respondent.
The facts, which are quite apparent are that
after availing a financial assistance from the
respondent-bank admittedly there was a default
committee in the remittance of the amount due to be
paid by the petitioner. There had been various
stages of proceedings including the proceedings for
entering into one time settlement after issuance of
demand notice under Section 13 (2) of the
Securitization Act, which has issued against the
petitioner way back on 01.01.2018.
The petitioner had earlier approached this
Court by filing a Writ Petition (M/S) No.391 of
2019 Padmawati Bulbs Private Limited vs.
United Bank of India and another, as against the
action of recovery taken by the bank for recovery of
the amount due to be paid by him. The Coordinate
Bench of this Court while considering the
difficulties being faced by the petitioner and in
order to balance the equities, at that point of time,
had passed an order, whereby certain instalments
were directed to be fixed by the judgment of
26.08.2019.
This Court feels it to be necessary to observe
that up to this stage, few facts, which are quite
eminent are:-
i. That the petitioner was very much
conscious of notice issued on 01.01.2018,
under Section 13(2) of the Act.
ii. It was after the issuance of notice, that the
proposal for one time settlement, was
preferred by the petitioner and was
considered on 30.12.2018, so the
petitioner, now cannot have that stand that
he was not having any knowledge of the
notice, which was issued under Section
13(2) of the Act.
iii. The knowledge of the notice itself could
be attributed by his act of filing of a writ
petition and soliciting the order of
26.10.2019 to pay the amount in easy
instalments.
iv. Since the writ court, when the writ was
decided on 26.08.2019, the propriety of
the notice was not a subject matter of
challenge, or which was under
consideration thereof in the finding
recorded by the learned Single Judge. It is
no more open for the petitioner now at
this stage to contend about the impact of
the notice under Section 13(2) of
SARFEASI Act, which he contends that it
was issued without knowledge to him.
v. Admittedly, despite of the fact that the
Court has granted the latitude to the
petitioner to pay the amount in
instalments, by the judgment of
26.08.2019, but he has not paid the same.
Consequently, the subsequent action of
taking possession under Section 13 (4)
was initiated on 29.07.2021 and thereafter
the proceeding under Section 13 (8) for
recovery of the amount, which is shown to
be issued against the petitioner has been
taken.
At this stage, the petitioner has put a
challenge to the auction notice, which has been
issued against him for selling the property, which
was mortgaged for the purpose of seeking an
advance of loan and as the auction proceedings is
scheduled to be held, he has filed this writ petition
for the following relief:-
"1. Issue a writ order or direction in the
nature of certiorari, quashing the
advertisement dated 07.07.2021, that has
scheduled the property of the petitioner for
auction.
2. Issue a writ order or direction in the
nature of certiorari, quashing the physical
possession notice dated 29.07.2021, that has
been pasted on the shop by the respondents.
3. Issue a writ order or direction in the
nature of mandamus, commanding the
respondent bank to return the possession of
the property to the petitioner company.
4. Pass any other order that this Hon'ble
Court may deem fit in the light of justice
equity and good conscience.
All of which is most humbly prayed."
In fact the relief which are sought therein will
have a close nexus and will relegate back by
initiation of an act of recovery by issuance of notice
under Section 13(2) which was issued on
01.01.2018. Hence, at this stage after the judgment
of learned Single Judge dated 26.08.2019, there
would be rather a legal estoppel against the
petitioner to raise any contention to the contrary
pertaining to the steps taken for the recovery of the
amount under the Securitization Act and under the
law and particularly the special statute of The
Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act,
2002, the petitioner's remedy lies under Section 17
of the Act, to approach before the DRT for
redressal of his grievance.
Hence, this Court declines to exercise its
extra ordinary jurisdiction under Article 226 of the
Constitution of India.
The writ petition is accordingly, dismissed.
(Sharad Kumar Sharma, J.)
11.08.2021
Arti
