Uttarakhand High Court
SPA/123/2023 on 4 May, 2023
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reports, orders
or proceedings
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Date or directions COURT'S OR JUDGES'S ORDERS
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04.05.2023 SPA No. 123 of 2023
Hon'ble Vipin Sanghi, C.J.
Hon'ble Rakesh Thapliyal, J.
1. Mr. Narender Hooda, learned Senior Counsel
assisted by Ms. Rajni Supyal Latwal and Mr. Rishabh
Jain, learned counsels for the appellant.
2. Mr. B.S. Parihar, learned Standing Counsel for
the State of Uttarakhand/ respondent no. 1.
3. Mr. P.K. Chauhan, learned counsel for
respondent no. 2.
4. The present Special Appeal is directed against
the order dated 27.04.2023 passed by the learned
Single Judge in Writ Petition (M/S) No. 990 of 2023,
whereby the learned Single Judge has dismissed the
Writ Petition preferred by the appellant. The appellant
had preferred the said Writ Petition to assail the order
passed by the District Magistrate, Dehradun in
exercise of the power under Section 14 of the
SARFAESI Act.
5. The learned Single Judge has dismissed the Writ
Petition by observing that the writ petitioner/
appellant has an alternative efficacious statutory
remedy, under Section 17 of the SARFAESI Act, to
assail the proceedings under Section 14 of the said
Act.
6. The submission of Mr. Hooda, learned Senior
Counsel for the appellant is that the Writ Petition
should have been entertained, since the signatures of
the borrower/ mortgager were forged by the
respondent. He further submits that writ proceedings
are maintainable, since no prior notice was issued by
the District Magistrate before proceeding under
Section 14 of the SARFAESI Act. He relies on the
judgment of the Allahabad High Court in Kumkum
Tentival v. State of U.P. and others, 2018 SCC
OnLine All 5836, wherein the Allahabad High Court
observed that, before proceeding under Section 14 of
the SARFAESI Act, the opposite party should be put to
notice. Mr. Hooda submits that this Court should have
quashed the proceedings under Section 14, and
remanded the matter back to the District Magistrate
by reserving the right of the borrower/ mortgager to
respond to the proceedings under Section 14 of the
SARFAESI Act.
7. We have considered the submissions of Mr.
Hooda, and do not find any merit in the same.
8. First and foremost, the appellant has a statutory
remedy, under Section 17 of the SARFAESI Act, before
the DRT. Secondly, even if it was to be accepted - for
the sake of argument, that a Writ Petition was
maintainable, this Court would not exercise its
discretionary jurisdiction to entertain a Writ Petition in
cases, where serious disputed questions of facts arise.
The appellant has raised a plea that the signatures of
the borrower/ mortgager were forged by the
respondent. The said factual controversy raised by
him would not be adjudicated in writ proceedings, and
the DRT is the appropriate forum to deal with all such
questions. Thirdly, there is no settled principle of law
that proceedings under Section 14 of the SARFAESI
Act, necessarily, have to be undertaken by putting the
borrower/ mortgager to notice. There is no
authoritative pronouncement of the Supreme Court on
the said aspect, and the proceedings under Section 14
of the SARFAESI Act does not give an indication that
the borrower/ mortgager has, necessarily, to be put to
prior notice.
9. We, therefore, do not find any merit in the any
of the aforesaid submissions, and dismiss the present
Special Appeal.
10. We leave it open to the appellant to approach
the DRT, under Section 17 of the SARFAESI Act. It is
made clear that no observation made by us shall come
in the way of the either party in such proceedings, and
the DRT shall deal with the matter on its own merits.
11. Consequently, pending application(s), if any,
stand disposed of accordingly.
(Rakesh Thapliyal, J.) (Vipin Sanghi, C.J.)
04.05.2023 04.05.2023
Rahul
