Court No. - 39
Case :- WRIT - C No. - 35469 of 2018 Petitioner :- Smt.Pushpa Devi Respondent :- The Housing Development Finance Corporation And 6 Others Counsel for Petitioner :- Ramendra Asthana Counsel for Respondent :- Krishna Mohan Asthana
Hon'ble B. Amit Sthalekar,J. Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri K.M. Asthana, learned counsel for the respondent-bank.
The petitioner in the writ petition is seeking a direction to the respondents to treat the notices dated 07.07.2017 and 15.07.2017 as objections under Section 13 (3A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( hereinafter referred to as the SARFAESI Act, 2002) and further to restrain the respondents from proceeding against the petitioner under Section 13 (4) of the SARFAESI Act, 2002.
Briefly stated the facts as emerging from the writ petition are that respondent-3- Smt. Nirmal Solanki and respondent no.4- Randheer Singh Solanki opened a Loan Account No.581583090 in respect of Plot No.C-121/C-1 of Agra Development Authority-MIG Phase-II Shastri Puram Yojana Agra ad- measuring 60 sq.m. The Agra Development Authority executed a sale deed in favour of Smt. Nirmal Solanki- respondent no.3 on 04.06.2009. The respondent no.3-Smt. Nirmal Solanki on the other hand executed a sale deed in favour of respondent no.5- Smt Sunita Chauhan w/o Arvind Chauhan and respondent no.6- Smt. Sunita Chauhan w/o Satyendra Singh Chauhan on 04.06.2009 itself. The respondent no.5 & 6 thereafter sold the property to the respondent no.7- Smt. Rajani Devi w/o Sri Rajkumar on 14.02.2014 for a sale consideration of Rs.14,00,000/-. Thereafter on 29.09.2014 respondent no.7 sold the property in favour of the petitioner for a sale consideration of Rs.14,00,000/-. Proceedings under Section 13 (4) have now been initiated by the Bank.
Learned counsel for the petitioner submits that notices under Section 13 (2) of the SARFAESI Act, 2002 have not been issued to the original purchaser of the land Smt. Nirmal Solanki- respondent no.3 and that no notice was issued to the petitioner.
Sri K.M. Asthana, learned counsel for the respondent-bank, on the other hand, submits that notices under Section 13 (2) of the SARFAESI Act, 2002 could not have been issued to the petitioner since he was not the borrower and the notice in fact has been issued to the original purchaser, namely, Smt. Nirmal Solanki and her husband Sri Randheer Singh Solanki.
However, the facts as emerges from the writ petition are that the proceedings under Section 13 (4) of the SARFAESI Act, 2002 have already been initiated by the respondent-bank. If the petitioner is a subsequent purchaser of the property he still has a remedy by way of filing an application under Section 17 (1) of the SARFAESI, Act, 2002 and it cannot be said that he is without any remedy.
The writ petition is accordingly dismissed with liberty to the petitioner to exhaust his remedy under Section 17 (1) of the SARFAESI Act, 2002.
Order Date :- 27.10.2018 N Tiwari