Uttarakhand High Court
WPMS/752/2021 on 25 March, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 25th DAY OF MARCH, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 752 of 2021
BETWEEN:
M/s Venus Cements Limited
......Petitioner
AND:
District Magistrate Dehadun & others
.....Respondents
With
Writ Petition (M/S) No. 753 of 2021
BETWEEN:
M/s Venus Cements Limited
......Petitioner
(By Mr. Bhupesh Kandpal, Advocate)
AND:
District Magistrate Dehadun & others
.....Respondents
(By Mr. Vinod Nautiyal, Deputy Advocate General for the
State of Uttarakhand/respondent nos. 1 & 2 &
Mr. Chandramauli Shah, Advocate for respondent no. 3)
JUDGMENT
Since common question of law and facts are
involved in these writ petitions, therefore are being
taken up together and are being adjudicated by this
common judgment. However, for the sake of brevity,
facts of WPMS No. 752 of 2021 are being considered.
2. According to the petitioner, he purchased the
land in question by a registered sale deed from Late
Ashwani Kala and subsequently, the said land was
mortgaged with Indian Overseas Bank by Late
Ashwani Kala (predecessor-in-interest of respondent
nos. 5, 6, 7 & 8) for obtaining a loan of
` 30,00,000/-. At the instance of Indian Overseas
Bank, Debts Recovery Tribunal, Dehradun has passed
a decree against borrowers on 23.09.2019. Debts
Recovery Tribunal has now proceeded to execute the
decree and petitioner apprehends that the land
purchased by him may be put for auction.
3. By means of this writ petition, petitioner has
sought following relief:
"(i) A writ order or direction in the nature of
mandamus directing the respondent no. 2/SDM
sadar Dehradun not to proceed with demarcation
for taking the physical possession of the land
owned and possessed by the petitioner till the
appeal is finalized by the appellate tribunal failing
which the petitioner shall suffer irreparable loss
and injury which cannot be compensated in any
manner."
4. Learned counsel for the petitioner submits that
petitioner has approached the Appellate Authority
against the judgment rendered by Debts Recovery
Tribunal. He further submits that petitioner had
purchased the land in question before creation of
charge in favour of Indian Overseas Bank, therefore,
the land, which he purchased before creation of
charge, cannot be subject matter of recovery
proceedings.
5. This submission, made by learned counsel for
the petitioner is disputed by Mr. Chandramauli Shah,
learned counsel appearing for the bank. He submits
that the land in question was mortgaged in favour of
the Bank on 10.01.2011 and the sale deed was
executed by Late Ashwani Kala much later on
21.04.2011.
6. In the present writ petition, petitioner has
sought a direction to the S.D.M., Sadar, Dehradun,
not to proceed with demarcation of the land
purchased by him. Such relief cannot be granted to
the petitioner, as Debts Recovery Tribunal has sought
valuation report of the said land, which was
mortgaged by the bank.
7. Learned counsel appearing for the bank has
apprised this Court that next date fixed before Debts
Recovery Tribunal in execution proceedings is
01.04.2021.
8. Having regard to the facts and circumstances of
the case, this Court is not inclined to grant the relief,
as prayed for.
9. However, since petitioner has already
approached the Appellate Authority against order of
Debts Recovery Tribunal, therefore, with a view to
enable the petitioner to obtain protection from the
Appellate Authority, it is provided that no
demarcation proceeding shall be undertaken only for
a period of ten days from today. However, the
concerned S.D.M. will be free to make demarcation of
the land in question, immediately upon expiry of ten
days.
10. Let a certified copy of this order be issued today
itself.
(MANOJ KUMAR TIWARI, J.)
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