# A.N.K. Restobars Pvt. Ltd. & Anr v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-03-11
- **Case number:** Civil Misc. Writ Petition No. 4024 of 2015
- **Bench:** Tarun Agarwala, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-n-k-restobars-pvt-ltd-anr-v-state-of-u-p-ors-43301
- **Pages:** 3

## Headnote

C.S.C., Sri Satish Chaturvedi.
The Securitisation and Reconstruction of
Financial
Assets
and
enforcement
of
Security Interest Act, 2002-Section 13 (3A)-provision of giving notice and disposal
of objection-before taking recourse of
Section 14-held-mandatory-in absence of
such
action-taking
possession-wholly
illegal quashed-petition allowed.
280
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-6
In the instant case, we find that the
objection of the petitioner has not been
decided by the respondent-bank, since
no order has been brought before the
Court, nor any such order has been
communicated to the borrower, namely,
the petitioner. In the absence of deciding
any objection, we are of the opinion that
the
respondent
could
not
file
an
application under Section-14 and take an
order for possession from the Collector
without deciding the objection under
Section-13(3-A). Consequently, the order
of the Additional District Magistrate
dated 28.11.2014 is wholly illegal and is
quashed. The writ petition is allowed. It
is open to the respondent-bank to
proceed from the stage of deciding the
objection
of
the
petitioner
under
Section-13(3-A) of the Act and proceed
accordingly.
Case Law discussed:
(2013) 9 SCC 620

## Text

1 All] A.N.K. Restobars Pvt. Ltd. & Anr. Vs. State of U.P. & Ors.
279
any evidence. Thus, point no.4 & 6 are
answered as above.
41. Learned counsel for the appellant
has also argued that charge against the
accused only covered under section 304
Part-1 IPC, therefore, converting the
offence said to be proved under section 302
IPC into the offence under section 304 IPC,
accused be enlarged on already undergone
by the appellant in jail. To decide this fact,
we have also taken into consideration the
facts and circumstances and the evidence
available on record. Accused has been
charged under Section 302 IPC. There is
clear medical evidence that she was done to
death.
Accused
has
not
given
any
explanation as to how deceased died.
Accused has also not taken any plea in the
trial Court that due to motive assigned in the
first
information
report
about
illicit
relationship of the deceased with one Hori
Lal, he was deprived of power of selfcontrol, therefore, he has committed the
present offence. Since there is no such type
of plea and facts and circumstances of the
case also does not warrant to hold any
presumption in favour of the accused,
therefore, arguments advanced by the
learned counsel for the appellant is not
acceptable. We are of the considered view
that the present case clearly covered under
section 302 IPC, but not under any
exception of the Section 300 IPC. Thus, on
the basis of foregoing discussions, we are of
the view that trial Court has rightly held
guilty to the appellant under Section 302
IPC
and
sentenced
him
for
life
imprisonment, which is the minimum
sentence.
42. So far as the inconsistency and
contradiction are concerned, there is no
such
type
of
inconsistency
or
contradiction
which
affects
the
prosecution case or creates doubt on the
material point. There is no infirmity,
perversity or illegality in the finding
arrived at by the trial Court and no
interference is required by this Court.
43. Thus, in view of the above, we
do not find any substance in the
contentions raised by learned counsel for
the appellant. The Appeal is devoid of
merit and is liable to be dismissed and is,
accordingly
dismissed.
Impugned
judgment and order dated 10.9.1986
passed by the trial Court is hereby
confirmed. Since the accused-appellant is
in jail, let a copy of this judgment and
order
be
sent
immediately
to
the
concerned Court to take necessary action.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE DR. SATISH CHANDRA, J.
Civil Misc. Writ Petition No. 4024 of 2015
A.N.K. Restobars Pvt. Ltd. & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Pankaj Agarwal
Counsel for the Respondents:
C.S.C., Sri Satish Chaturvedi.
The Securitisation and Reconstruction of
Financial
Assets
and
enforcement
of
Security Interest Act, 2002-Section 13 (3A)-provision of giving notice and disposal
of objection-before taking recourse of
Section 14-held-mandatory-in absence of
such
action-taking
possession-wholly
illegal quashed-petition allowed.
280
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-6
In the instant case, we find that the
objection of the petitioner has not been
decided by the respondent-bank, since
no order has been brought before the
Court, nor any such order has been
communicated to the borrower, namely,
the petitioner. In the absence of deciding
any objection, we are of the opinion that
the
respondent
could
not
file
an
application under Section-14 and take an
order for possession from the Collector
without deciding the objection under
Section-13(3-A). Consequently, the order
of the Additional District Magistrate
dated 28.11.2014 is wholly illegal and is
quashed. The writ petition is allowed. It
is open to the respondent-bank to
proceed from the stage of deciding the
objection
of
the
petitioner
under
Section-13(3-A) of the Act and proceed
accordingly.
Case Law discussed:
(2013) 9 SCC 620
(Delivered by Hon'ble Tarun Agarwala, J.)
1. We have heard Sri Pankaj
Agarwal,
learned
counsel
for
the
petitioners and Sri Satish Chaturvedi,
learned counsel appearing for the State
Bank Of India, Meerut-respondent no.4.
2. The petitioner is a borrower and
had taken certain cash credit facility from
the respondent-bank. Since the petitioner
could not repay the loan, proceedings
under
The
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 (hereinafter referred as the 'Act')
was initiated by the respondent-bank. A
notice dated 11.05.2013 under Section13(2) of the Act was issued to the
petitioner in pursuance of which the
petitioner
filed
his
objection
dated
05.07.2013.
Without
deciding
the
objection,
it
transpires
that
the
respondent-bank filed an application
under Section-14 of the Act before the
District Magistrate which was allowed by
an order dated 28.11.2014 permitting the
respondent-bank
to
take
physical
possession of the property in question.
The petitioner, being aggrieved by the
action of the respondent and the order of
the
Additional
District
Magistrate
(Finance & Revenue) has filed the present
writ petition contending that no measures
for taking possession of the property
could be taken unless objection of the
petitioner was decided by the respondentbank under Section-13(3-A) of the Act
which, in the instant case, has not been
done.
3. This Court while entertaining the
writ petition had directed the learned
counsel for the respondent-bank to seek
necessary instructions as to whether any
objection was filed and whether any order
on such objection was passed by the
respondent-bank.
4. Sri Satish Chaturvedi, learned
counsel for the respondent-bank had
obtained
necessary
instructions
and
submitted that objection was received by
the respondent-bank and that it transpires
from the order of the District Magistrate
that objection was decided but the same is
not on the record and there is nothing
further to indicate that such reply of the
bank was communicated to the petitioner.
Learned counsel has further place reliance
upon paragraph-26 of the judgment of the
Supreme Court in Standard Chartered
Bank Vs. V. Nobel Kumar and others
(2013) 9 SCC 620 to support his
contention that possession can be taken
without even deciding the objection of the
petitioner under Section-13(3-A) of the
Act.
1 All] Bajji Vs. State of U.P. & Ors.
281
5. Having heard the learned counsel
for the parties, we are of the opinion that
the writ petition could be decided at the
admission stage itself on the basis of the
instructions received by the learned
counsel for the respondent-bank. We find
that the Supreme Court's judgment in
Standard Chartered Bank (supra) is not at
all applicable in the instant case. The
scheme of the Act and the procedure
provided under Section-13 of the Act for
the enforcement of the security interest
requires that where the borrower is under
a liability to a secured creditor and makes
a default in repayment of the secured
debt, in which case, the secured creditor is
required to issue a notice in writing to the
borrower to discharge in full his liabilities
to the secured creditor within a stipulated
period. On receipt of the said notice, the
borrower is entitled to raise objections
which, in our opinion, is required to be
decided by the bank under Section-13(1A) of the Act. This provision, in our
opinion is mandatory and it is obligatory
to the bank to decide the objections.
Once such objection is decided and the
liability is not discharged then it
becomes open to the respondent-bank to
proceed under Section-13(4) by taking
possession
or
taking
over
the
management of the business of the
borrower. Section-14 is an additional
procedure for taking possession which
the Supreme Court has held in Standard
Chartered Bank's case.
6. In the instant case, we find that
the objection of the petitioner has not
been decided by the respondent-bank,
since no order has been brought before
the Court, nor any such order has been
communicated to the borrower, namely,
the petitioner. In the absence of deciding
any objection, we are of the opinion that
the
respondent
could
not
file
an
application under Section-14 and take an
order for possession from the Collector
without deciding the objection under
Section-13(3-A). Consequently, the order
of the Additional District Magistrate
dated 28.11.2014 is wholly illegal and is
quashed. The writ petition is allowed. It is
open to the respondent-bank to proceed
from the stage of deciding the objection
of the petitioner under Section-13(3-A) of
the Act and proceed accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE SHASHI KANT, J.
Civil Misc. Writ Petition No. 5206 of 2015
Bajji
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri C.B. Dubey, Sri S.B. Dubey
Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh
Constitution of India-Art.226-Notification
under Land Acquisition-challenged-after 2
decades-no
plausible
explanation-delay
having
important
note
in
acquisition
proceeding-can not be interfered under
writ jurisdiction.
Held: Para-20 & 21
20. The acquisition proceedings have
been challenged by the petitioner after
about two decades. The submissions as
made and the aspects or suggested by
learned counsel for the petitioner hardly
gives any reasonable and satisfactory
explanation for gross and inordinate
delay in filing the petition.