WPMS/2378/2021
2021 Latest Caselaw 4588 UK

     IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
      ON THE 16th DAY OF NOVEMBER, 2021
                             BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

       Writ Petition (M/S) No. 2378 of 2021
BETWEEN:
M/s Royal Lawns, Village
Ganguwala, Tehsil Jaspur
and Others                                                ...Petitioners
      (Mr. Atul Kumar Bansal, Advocate)

AND:

The Nainital Bank Ltd.                                   ...Respondent
      (Dr. Kartikey Hari Gupta, Advocate for the respondent)

                           JUDGMENT

Petitioner's firm took a loan from Nainital Bank Ltd., Branch Jaspur, District Udham Singh Nagar in the year 2015.

2. Since the loan could not be repaid in time, therefore, the respondent-Bank has initiated proceedings for recovery of the outstanding dues by invoking provision of SARFAESI Act, 2002.

3. By means of this writ petition, petitioner has sought the following reliefs:-

"1. To issue a writ, order or direction in the nature of certiorari to quash the notice dated 5.6.2021 (annexure no.1) issued u/s 13(2) of the SARFAESI Act, 2002 and the reply notice/ order dated 4.9.2021 (annexure no.2), communicating the reasons for non compliance of the representation/ objection dated 14.8.2021 u/s 13(3A) of the SARFAESI Act, 2002.

2. To issue a writ, order or direction in the nature of mandamus commanding the respondents herein to drop the proceedings initiated by the respondent Bank against the petitioner herein under SARFAESI Act, 2002."

4. Learned counsel for the petitioner submits that the secured asset has been leased out by partners of the firm (petitioner nos. 2 and

3) in favour of the firm (petitioner no.1), therefore, the provision of SARFAESI Act, 2002 will not be applicable in view of Section 31 (e) of the SARFAESI Act, 2002. He further submits that although Section 31 (e) was omitted w.e.f. 01.09.2016, however on the date when petitioner no.1 took the loan, the said provision was there in statute book. Petitioner had made a representation against notice under Section 13 (2) of the SARFAESI Act, 2002 contending that in view of provision contained in Section 31 (e) of the SARFAESI Act, 2002, the property in question is exempted from application of provision of SARFAESI Act, 2002. The aspect highlighted by the petitioner in his representation has not been considered by the respondent-Bank.

5. Be that as it may, since no prejudice is caused to the petitioner by any action taken by the respondent-Bank against him, therefore, the writ petition is premature.

6. Having regard to the facts and circumstances of the case, the writ petition is disposed of with the hope and expectation that the

respondent-Bank shall proceed in the matter, strictly in accordance with law including provision contained in SARFAESI Act, 2002.

(MANOJ KUMAR TIWARI, J.) Shubham