Uttarakhand High Court
WPMS/278/2022 on 17 February, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 17TH DAY OF FEBRUARY, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ K. TIWARI
Writ Petition (M/S) No. 278 of 2022
BETWEEN:
M/s KMC Plastochem & another ... Petitioners
(By Mr. Sahil Mullick, Advocate)
AND:
Canara Bank & others ... Respondents
(By Mr. Ashutosh Thakral, learned counsel for Canara
Bank, Mr. Narayan Dutt, learned Brief Holder for the
State of Uttarakhand and Mr. Maneesh Bisht, Advocate
holding brief of Mr. Vipul Sharma, learned counsel for
respondent no. 4)
JUDGMENT
1. Heard learned counsel for the parties through
video conferencing.
2. Petitioner took a loan from Canara Bank,
Branch Kotdwar, Pauri Garhwal for setting up an
industrial unit. Since the loan was not repaid in time,
therefore, recovery proceedings were initiated by
invoking provision of Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest
Act, 2002 (in short "SARFAESI Act") against the
petitioners.
3. In the writ petition, petitioner has challenged
the possession notices issued under Section 13(4) of
SARFAESI Act by respondent bank on 24.09.2021.
4. It is not in dispute that petitioner has filed
Securitisation Application before Debts Recovery
Tribunal, Dehradun on 25.10.2021 challenging the
notices issued under Section 13(4) of the SARFAESI
Act. It is also not in dispute that DRT, Dehradun is
vacant, due to expiry of term of Presiding Officer,
therefore, petitioner had approached Debts Recovery
Appellate Tribunal, Allahabad for transfer of his
Securitisation Application to DRT, Lucknow or DRT,
Allahabad.
5. Learned counsel for the petitioner submits
that subsequent to petitioner approaching DRAT,
Allahabad, the term of Presiding Officer of DRAT,
Allahabad also expired and now DRAT is also vacant
due to non-availability of Presiding Officer. Learned
counsel for the petitioner further submits that
apprehending coercive measure at the hands of the
respondent bank, petitioner has approached this Court
under Article 226 of the Constitution, for protection.
7. Per contra, Mr. Ashutosh Thakral, learned
counsel appearing for the respondent bank submits that
petitioner has already approached DRAT, Allahabad
seeking transfer of his case to some other DRT,
therefore, he is not entitled to the relief, as claimed in
the writ petition. He further submits that as of now
only symbolic possession of the secured asset has been
taken and auction proceeding has not been initiated so
far, therefore, the writ petition is pre-mature.
8. Learned counsel for the petitioner has placed
reliance upon an order dated 16.12.2021 passed by
Hon'ble Supreme Court in the case of State Bar Council
of Madhya Pradesh vs Union of India & others passed in
SLP No. 10911 of 2021 in support of his contention that
in circumstances like the present one, where
DRTs/DRATs are unable to function due to non-
availability of Presiding Officer, a borrower can
approach jurisdictional High Court under Article 226 of
the Constitution, for relief.
9. Since petitioner has approached DRT,
Dehradun against the order under Section 13(4) of
SARFAESI Act, however, his Securitisation Application
has not been considered on account of vacancy on the
post of Presiding Officer, therefore, having regard to
the peculiar fact of the case, the writ petition is
disposed of by providing that till 15.04.2022 or till
appointment of Presiding Officer in DRT, Dehradun,
whichever is earlier, no coercive action shall be taken
against the petitioner.
10. However, it is made clear that learned DRT,
Dehradun will decide the matter on merit untrammelled
by any observation made in this order.
(Manoj Kumar Tiwari, J.)
Aswal
