Hon'ble Attau Rahman Masoodi,J.
Heard Sri S.K.Dubey, learned counsel for the appellant and Sri Ashish Agarwal, learned counsel for respondent no.1-bank and perused the record.
This special appeal has been filed challenging the order/ judgment passed by the learned Single Judge in Writ Petition No. 148 of 2013 on 21.1.2013 as well as judgment dated 21.2.2013 passed in Review application no. 38210 of 2013.
Peculiar facts and circumstances of the case in nut-shell are submarised as below.
The respondent -bank issued a notice under section 13 of SARFAESI Act, 2002 on 3.7.2012 which was modified by notice dated 9.7.2012. Against these notices objections were also filed by the appellant on 14.8.2012 and supplementary objections were raised by the appellant on 23.8.2012. Objections raised by the appellant were rejected on 5.9.2012.
At the stage, when the objections were rejected, the appellant feeling aggrieved approached this Court by means of Writ Petition No. 51838 of 2012 which was dismissed on 5.10.2012 on the ground of alternative remedy to be involved at the appropriate stage.
-------
After dismissal of the writ petition on the ground of alternative remedy, the bank issued notice dated 22.10.2012 which according to the learned counsel for the appellant was in the nature of taking possession ,as such ,constituted measures contemplated under Section 13(4) of SARFAESI Act, 2002. On the assumption of letter dated 22.10.2012, proceedings were initiated before the Debt Recovery Tribunal by filing S.A. No. 469 of 2012. The respondent -bank raised preliminary objections to the maintainability of the S.A. on the ground that proceedings could not be maintained as the letter dated 22.10.2012 did not constitute measures as contemplated under section 13 (4) of the SARFAESI Act, 2002. Supplementary objections in support of the preliminary objections were also raised . The appeal under section 17 of the Act filed by the appellant before the Debt Recovery Tribunal was dismissed by the Debt Recovery Tribunal on 17.12.2012 as non-maintable which gave rise to Writ Petition No. 148 of 2013 which was also dismissed by means of the impugned judgment dated 21.1.2013.
Before the Writ Court, submissions of the learned counsel for the appellant was to the effect that the letter dated 22.10.2012 amounts to measures under section 13(4) of the SARFAESI Act. 2002 and therefore, Debt Recovery Tribunal ought not to have rejected the proceedings on the ground of maintainability. In support of this contention before us, reliance is placed upon the judgment reported in 2009 ( 8) SCC , 366. On the strength of the judgment cited before us, it is demonstrated that the Apex Court in the judgment ( Supra ) has permitted the aggrieved person to agitate his grievance at the stage when any measure under 13(4) are resorted to and it is immaterial whether possession of the mortgaged property is actually taken over or not. Learned counsel for the appellant has cited paragraph nos. 26,27, 28 and 29 of the aforesaid judgment before us in support of his contention.
On the other hand , learned counsel for the respondent-bank while meeting the submissions advanced before us has cited judgment of the Apex Court reported in 2013 ( 9) 260 and has drawn our attention to paragraph nos. 27,28, 36 and 37 of the later judgment. we do notice a state of uncertainity as regards to as to the remedy available to an aggrieved person in the light of judgments passed by the Apex Court which deal with law on the subject but we may not loose sight of the aspect that the objections raised by the appellant have been rejected prior to institution of proceedings under section 17 of the SARFAESI Act, 2002. and possession notice issued on 22.10.2012 pursuant to which Panchnam was drawn. We can not also loose sight of the fact that separate proceedings for realisation of the dues were also taken up by the bank before the Debt Recovery Tribunal independently by filing O.A. No. 521 of 2012 which is posted for final hearing on 13th May, 2014 before Debt Recovery Tribunal, Lucknow.
Learned Single Judge---
In the back -drop of the aforesaid fact, the bank has also resorted to the proceedings under section 14 of the SARFAESI Act, 2002 before the District Magistrate due to the resistance of the appellant to deliver the mortgaged property. The proceedings before the District Magistrate is said to be pending and notices thereof have already been issued to the appellant. On filing objections by the appellant, the same are to be decided . At this stage, we find that writ petition filed before this Court prior to institution of the proceedings under section 17 of the SARFAESI Act, 2002 were initially entertained and the same stood discharged by order dated 4.4.2012. Two proceedings which are pending . Firstly, proceedings on assumption of possession. Secondly, proceeding to determination of liability in O.A. No. 521 of 2012 pending before Debt Recovery Tribunal, Lucknow.
Since proceedings as aforesaid are pending before two different forums, we are of the considered opinion that the District Magistrate may decide the application filed by the responent by affording reasonable opportunity to the appellant and pass a reasoned and speaking order in accordance with law.
We further provide that the parties before us will cooperate in the proceedings in O.A. No. 521 of 2012 before the Debt Recovery Tribunal , Lucknow which may proceed to conclue the same without granting any adjournment to either of the parties. The Tribunal will proceed on day to day basis to decide the said controversy.
Untill decision by the Tribunal as regards to liability of the appellant before us, we provide that the respondent -bank may proceed after giving an opportunity to the appellant for redeeming liability towards. In the event of any objection, it shall be open to the appellant to agitate his grievance under section 17 of the SARFAESI Act, 2002.
With these observations/directions, the special appeal stands disposed of.
Order Date :- 23.4.2014 aks (Attau Rahman Masoodi J .) ( Sheo Kumar Singh J.)