SPA/43/2021
2021 Latest Caselaw 472 UK

  IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                                 AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



           Special Appeal No. 43 of 2021


                  25TH FEBRUARY, 2021


Between:


Neeraj Singh Negi.                                     .......Appellant

and

State of Uttarakhand and others.

                                                   .......Respondents

Counsel for the Appellant               :    Mr.     T.A.   Khan,
                                             learned       Senior
                                             Advocate assisted by
                                             Mr. Ravi Shanker
                                             Kandpal,     learned
                                             Advocate     holding
                                             brief of Mr. Vinay
                                             Bhatt,       learned
                                             Advocate.

Counsel for the respondents              : Mr. J.C. Pandey,
nos. 1, 2 & 5                              learned Brief Holder
                                           for the State.

Counsel for the respondent               : Mr. Siddhartha Sah,
nos. 3 & 4.                                 learned Advocate.


The Court made the following:


JUDGMENT :    (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)




      The petitioner is aggrieved by the order dated

15.12.2020, passed by the learned Single Judge in
 WPMS No. 1075 of 2017, whereby the learned Single

Judge has dismissed the writ petition, wherein the

petitioner    has    challenged       the   Panchanama       dated

16.01.2017, issued by Almora Urban Cooperative Bank

Ltd. and the notices dated 16.01.2017 and 17.01.2017

also issued by the Almora Urban Cooperative Bank Ltd.

and the notice dated 25.04.2017 issued by respondent

no. 5, the Tehsil Garur, District Bageshwar.

2.           Briefly, the facts of the case are that the

petitioner    took    a   loan     from     the    Almora    Urban

Cooperative Bank Ltd. However, as he failed to repay

the loan amount, the Bank initiated proceedings against

him under the provision of SARFAESI Act. Since the

petitioner was aggrieved by the notices mentioned

hereinabove, he filed a writ petition before this Court.

However, by the impugned order dated 15.12.2020, the

learned Single Judge dismissed the writ petition as

aforementioned. Hence, the appeal before this Court.

3.           Mr. T.A. Khan, the learned Senior Counsel,

submits that the contention with regard to the power of

the Bank to initiate proceedings under SARFAESI Act

has been settled by the Hon'ble Supreme Court in the

case   of     Pandurang           Ganpati         Chaugule     Vs.

Vishwasrao       Patil    Murgud        Sahakari     Bank     Ltd.

Therefore, he does not wish to raise the said contention

before this Court. However, his plea is that since the

petitioner   has     already     deposited    Rs.5,00,000/-,    in
                                  2
 compliance of the order passed by this Court and since

the liberty to approach the Debt Recovery Tribunal (for

short "the DRT") has been granted to the petitioner, the

DRT should be directed not to insist that the petitioner

should deposit any amount while filing his petition

before the DRT. Moreover, although the learned Single

Judge had granted four weeks' time to the petitioner to

file the petition before the DRT, the said period had

already lapsed.Therefore the learned Senior counsel

prays that the period for filing the petition before the

DRT should be extended by this Court.

4.         On the other hand, the learned counsel for

the Bank submits that it is the discretion of the DRT to

insist that an amount to be paid to the Bank or to be

deposited with DRT. Therefore, such discretion should

not be curtailed by this Court in its writ jurisdiction.

However, the learned counsel has frankly conceded, and

in of the opinion of this Court rightly so, that the period

for filing the petition before the DRT may be extended

by this Court.

5.         This Court grants the petitioner a further

period of four weeks' for filing the petition before the

DRT. It is hereby clarified that no coercive action shall

be taken by the Bank against the petitioner, during the

said period of four weeks.




                             3
 6.             However, this Court leaves it open to the DRT

to decide whether to insist that the petitioner should

deposit an amount with the DRT or the amounts already

deposited by the petitioner i.e., Rs. 5,00,000/- with the

Bank is sufficient for the purpose of filing the petition

before the DRT. The Petitioner shall be at liberty to

raise his plea with regard to a said issue before the

DRT. With these directions the appeal stands disposed

of.


                  _____________________________
                  RAGHVENDRA SINGH CHAUHAN, C.J.



                                   ___________________
                                   ALOK KUMAR VERMA, J.

Dt:25th February, 2021 Neha/Shubham