WPMS/2915/2021
2022 Latest Caselaw 2 UK

     IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
        ON THE 3RD DAY OF JANUARY, 2022
                           BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


      WRIT PETITION (M/S) NO. 2915 of 2021

BETWEEN:

Smt. Rakhi.                                     ..........Petitioner
      (By Mr. Piyush Garg and Mr. Nikhil Singhal, Advocates)


AND:
Punjab National Bank & others.                ......Respondents
      (By Mr. V.K. Kohli, Senior Advocate, assisted by Mr. Kanti
      Ram Sharma, Advocate for respondent nos. 1 & 2)


                        JUDGMENT

Respondent no. 3 executed a registered agreement to sell in favour of petitioner in respect of an immovable property on 08.09.2017, however before that, respondent no. 3 had mortgaged the said property in favour of Punjab National Bank for obtaining a loan. Due to default by respondent no. 3 in repayment of loan, the lending bank has invoked its power under SARFAESI Act, 2002 in respect of the said property by taking its symbolic possession.

2. In this writ petition, petitioner has sought following reliefs:-

"i. To issue a writ, order or direction in the nature of certiorari for quashing the sale notice dated 07.12.2021 issued by respondents so far as the same relates to property bearing plot no. 220 (khasra no.

880) Poorvi Nath Nagar, Jwalapur, District Haridwar (Annexure No. 9).

ii. To issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 and 2 to not to issue sale certificate and to not to execute sale deed in respect of the property in question in favour of any person in furtherance of the aforesaid notice.

iii. To issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 and 2 to permit the petitioner to deposit the entire loan outstanding amount in respect of the loan secured by mortgaging the aforesaid property as secured assets and to thereupon release the title deed of the same in favour of the petitioner."

3. Learned Senior Advocate for respondent nos. 1 & 2 submits that the secured asset has been auctioned for a sum of ` 58.07 Lakhs.

4. Learned counsel for the petitioner submits that sale certificate has not been issued in favour of auction purchaser of the secured asset and the sale has not been confirmed. He submits that petitioner had filed a suit for specific performance against respondent no. 3, which was decreed vide judgment dated 09.12.2019 and now the decree has been put to execution and the lending bank has been impleaded as party to the execution proceedings. Learned counsel for the petitioner further submits that petitioner is ready & willing to pay whatever amount is outstanding in the loan account of respondent no. 3 and such deposit would give a valid discharge under Section 13 (4) of SARFAESI Act. Learned Senior Advocate for respondent nos. 1 & 2, however, disputes this submission and contends that

petitioner is not a borrower, therefore, provision contained in Section 13 (4) of SARFAESI Act do not apply to her case.

5. Having regard to the willingness expressed by petitioner to pay the entire loan amount outstanding against respondent no. 3, the writ petition is disposed of with liberty to petitioner to approach the Competent Authority in Punjab National Bank by making a representation. If petitioner makes such representation within ten days from today and also deposits the entire outstanding amount with her representation, Competent Authority in the Bank shall consider the representation and take appropriate decision, in accordance with law, within four weeks' from the date of receipt of representation alongwith certified copy of this order.

6. For a period of five weeks or till decision is taken on petitioner's representation, whichever is earlier, sale certificate shall not be issued in favour of auction purchaser of the secured asset.

(MANOJ KUMAR TIWARI, J.) Arpan