Hon'ble Shashi Kant,J.
This writ petition was filed with the primary allegation that the Bank has filed the application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Interest Act, 2002 (hereinafter referred to as "the Act, 2002") which was not supported by an affidavit as required in terms of the said provisions. Consequently, the order is bad in law.
We had passed an order for production of the original records as from the perusal of the order passed by the District Magistrate it was not clear as to whether the affidavit had been filed or not.
Learned Additional Chief Standing Counsel has produced the original records from the office of the District Magistrate and which contains the affidavit dated 1st June, 2017. This affidavit is filed by the Authorised officer in respect of the application which was moved by the Bank and is dated 5th May, 2017.
The argument of the learned counsel for the petitioner is that it now stands established that when the application was filed there was no such affidavit whereas the requirement of law is that the application should be accompanied by an affidavit. Learned counsel has also relied on a Division Bench judgment of this Court in the case of Shiv Charan lal Srivastava Vs. Allahabad Bank, Writ Petition No. 25953 of 2015 (decided on 06.05.2015).
Inviting the attention of the Court to the provisos to Section 14(1) of the Act, 2002 and the ratio of the aforesaid decision it is urged that since the application was not accompanied by an affidavit as on the date of its filing therefore it as an incompetent application and could not have been registered nor orders could have been passed in terms of Section 14 of the Act, 2002.
We have considered the submissions raised and what we find is that it is correct that the affidavit in support of the application was filed later on but prior to the passing off the impugned order dated 21st June, 2017. Thus, the application was accompanied by an affidavit as on the date when the District Magistrate applied his mind and passed the impugned order. Consequently, the argument of the learned counsel for the petitioner that the application was defective and not accompanied by an affidavit does not hold water. The original record, clearly demonstrates that the proceedings had been initiated in accordance with the provisions and the formality of filing an affidavit in support of the application stood completed prior to the passing of the impugned order. The averment to the contrary made in the writ petition therefore is wrong.
Learned counsel for the petitioner then submitted that the boundaries of the property mortgaged have not been correctly described and the number of properties are also in variation. For this the learned Additional Chief Standing Counsel has invited attention of the Court to the affidavit of Prabhawati Devi which is also on record. The said affidavit is addressed to the Branch Manager, Bank of Baroda, Branch - Ahraura, District - Mrizapur. To our mind there is no dispute of the identity or description of the property which has been made subject matter of the proceedings under Section 14 of the Act, 2002.
In our considered opinion if the petitioner desires to raise any dispute about taking over of possession of a property with a disputed identity or any dispute arising out of the merits of the claim under the agreement, since measures for possession have been taken, it will be open to the petitioner to raise such a dispute before the Debt Recovery Tribunal in terms of Section 17 of the Act, 2002.
We therefore, do not find any force in the writ petition. The same is accordingly dismissed subject to the observations made above.
The original records which have been produced, are returned back to the learned Additional Chief Sanding Counsel.
Order Date :- 30.5.2018 A. Verma