Uttarakhand High Court
WPMS/924/2021 on 29 July, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 29TH DAY OF JULY, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 924 OF 2021
BETWEEN:
Ram Kumari Devi ...Petitioner
(By Mr. Dushyant Mainali, Advocate)
AND:
State of Uttarakhand & others ...Respondents
(By Mr. J.S. Bisht, learned Standing Counsel for the
State of Uttarakhand, Mr. Siddhartha Sah, learned
counsel for respondent/Bank and Mr. Ashish Joshi,
learned counsel for respondent no. 5)
JUDGMENT
1. According to the petitioner, she is neither
the borrower nor the guarantor in respect of any loan
taken from Almora Urban Cooperative Bank Ltd.
2. By means of this writ petition, petitioner
has sought following relief:-
(i) Issue a writ order or direction in the nature
of certiorari quashing the possession notice
dated 6.4.2021 issued by Authorized
Officer, Almora Urban Cooperative Bank
Limited and all consequential proceedings,
so far as its relates to property of the
petitioner situated at House No. 8-158
Kaladhungi Road, Haldwani District Nainital
not to alienate and create any third party
interest in the House No. 8-158 of the
Petitioner and to recover the dues of
borrower out of the properties nos. 8-125
and 8-126 Kaladhungi Road Haldwani and
other properties of the borrower.
(ii) Issue a writ order or direction in the nature
of mandamus directing the respondent no.
1 and 4 to initiate an appropriate inquiry in
the present matter and to punish the guilty
persons who ever has committed fraud with
the petitioner in obtaining loan against her
property and to take appropriate legal
action against them.
3. Learned counsel for the petitioner submits
that Ranbir Nagpal, principal borrower, is brother-in-
law of the petitioner and he has mortgaged the House
No. 8-158, Kaladhungi Road, Haldwani, District
Nainital belonging to the petitioner in favour of
Almora Urban Cooperative Bank Ltd., based on a
forged Will dated 23.04.2001.
4. Learned counsel for the petitioner has
referred to a document enclosed as Annexure - 3 to
the writ petition, which is a registered Will dated
24.06.1993 in which it has been stated that
petitioner's husband - Dharampal shall be the owner
of House No. 8-158. Thus, it is the contention of
learned counsel for the petitioner that her father-in-
law, Late Damodar Das, had executed only one Will
i.e. dated 24.06.1993 and the subsequent Will dated
23.04.2001, relied upon by the petitioner's brother-
in-law for obtaining loan, is a forged document.
5. The issue raised by the petitioner cannot be
resolved in a public law remedy under Article 226 of
the Constitution of India. Disputed questions of fact,
for adjudication, whereof recording of oral evidence
would be necessary, cannot be decided in
proceedings under Article 226 of the Constitution.
6. In such view of the matter, the relief, as
claimed in the writ petition, cannot be granted to the
petitioner, however, having regard to the facts and
circumstances of the case, the writ petition is
disposed of with liberty to the petitioner to approach
the appropriate forum available under the law for
adjudication of her right.
7. Mr. Siddhartha Sah, learned counsel for
Almora Urban Cooperative Bank makes a statement
that the Bank will not take any action under
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 in
respect of House No. 8-158, Kaladhungi Road,
Haldwani for a period of two months. Interim order,
if any, stands vacated.
(MANOJ KUMAR TIWARI, J.)
Aswal
