High Court of Punjab and HaryanaCWP/17822/2018disposed of

Dev Raj v. State Of Punjab And ORS

2018-07-30Mr. Justice R.C. Kathuria (Retd.),Ms. Justice Ritu Bahri4 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Decided on : 30.07.2018 Dev Raj . . . Petitioner(s)

Versus

State of Punjab and others . . . Respondent(s) CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTAL HON'BLE MR. JUSTICE AVNEESH JHINGAN PRESENT: Mr. Peeush Gagneja, Advocate for the petitioner.

**** AJAY KUMAR MITTAL, J. (Oral) The challenge in this writ petition filed under Articles 226/227 of the Constitution, is to the notice dated 25th July, 2017 (Annexure P-5), issued by respondent No.7-Bank, under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the Act') and notice dated 26th April, 2018 (Annexure P-6), issued under Section 13(4) of the Act by respondent No.2. Besides above, a prayer for issuing directions to respondent No.7 to release the property of Homeopathic Medical College and Hospital and recover the alleged amount form respondents No.4 & 5, has also been made.

At the outset, a query was put to learned counsel for the petitioner, whether any appeal lies against the impugned order dated 26th April, 2018 (Annexure P-6), issued by respondent No.2, it was candidly submitted that the same is appealable under Section 17 of the Act before the Debts Recovery Tribunal.

Section 17 of the Act reads thus:- "17. Right to appeal (1) Any person (including borrower), aggrieved by any of the

- 2 - measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, may make an application alongwith such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken:

PROVIDED that different fees may be prescribed for making the application by the borrower and the person other than the borrower.

Explanation : For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section.

(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the

- 3 - business to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in sub-section

(4) of section 13 taken by the secured creditors as invalid and restore the possession of the secured assets to the borrower or restore the management of the business to the borrower, as the case may be, and pass such order as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt.

(5) Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application: PROVIDED that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under subsection (1).

- 4 - Tribunal within the period of four months as specified in subsection (5), any part to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.

(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the rules made thereunder."

In such a situation and keeping in view the above, as certain facts are required to be established, we dispose of the present writ petition by relegating the petitioner to avail the aforesaid alternative remedy, in accordance with law. (AJAY KUMAR MITTAL) JUDGE (AVNEESH JHINGAN) JUDGE July 30, 2018 J.Ram Whether speaking/reasoned:

Yes/No Whether Reportable:

Yes/No