Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner as well as Sri S.M. Singh Royekwar, learned counsel who has accepted notice for opposite parties 1and 2 and Sri Santosh Kr. Yadav "Warsi", learned counsel for opposite party no.4. For the order proposed to be passed in this petition, we do not find it necessary to issue notice to opposite party no.3. Hence notice to opposite party no.3 is dispensed with.
The writ petition has been filed seeking the following main relief:-
i. to set aside the impugned order dated 02.02.2021 passed by Debts Recovery Tribunal, Lucknow in Securitization Application No. 131 of 2020 under Section 17(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act, 2002] contained at Annexure no.1 to the writ petition.
ii. directing the opposite party no.3 to decide the interim relief application filed along with Securitization Application no.131 of 2020, under Section 17(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act, 2002] on merit after affording opportunity of hearing to petitioner/applicant.
Learned counsel for petitioner has submitted that the application under Section 17(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act, 2002] has been rejected by means of impugned order dated 02.02.2021 on the ground that verification of the affidavit filed in support of application was defective since the verification clause was blank and as such it was held that Securitization Application No. 131 of 2020 was not maintainable and was dismissed in entirety.
Learned counsel for petitioner submits that the defect of verification clause lying blank was curable defect, which the Tribunal could have directed the petitioner to cure and there was no occasion for dismissing the securitization application in entirety. Learned counsel for petitioner further submits that since the impugned order rejecting the application has been passed without considering the matter on merits, petitioner may be granted liberty to file a fresh application and for the said purpose he has relied upon the judgment of Hon'ble the Supreme Court in Daryao and others v. State of U.P. and others, reported in AIR 1961 SC 1457.
Considering the aforesaid submissions advanced by learned counsel for petitioner, it is not in dispute that the securitization application has been dismissed only on the ground that the same was not maintainable since the verification clause in the affidavit was blank and therefore defective. It is to be seen that the order has not been passed considering the merits of the case and said defect even otherwise could very well have been permitted to be cured by the Tribunal instead of dismissing the application in its entirety.
Considering the applicability of the judgment rendered by Hon'ble the Supreme Court in Daryao(supra), the writ petition is disposed of finally granting liberty to petitioner to file a fresh Securitization Application under Section 17(1) of SARFAESI Act, 2002, which shall be considered. The respondents are at liberty to raise all available objections.
Order Date :- 22.2.2021 kvg/-