# Bank of Baroda v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Writ-C No. 9412 of 2022
- **Bench:** Surya Prakash Kesarwani, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bank-of-baroda-v-state-of-u-p-ors-48782
- **Pages:** 10

## Headnote

Law
-Securitization
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002-Sections 14 & 34 -The petitioner
is a bank whose application rejected
u/s 14 SARFAESI Act on the ground of
temporary injunction passed by civil
court filed by tenant in which the
bank was not a party -an unregistered
lease agreement executed by wife in
favour of her husband conferring right
to him to mortgage and sublet etc.-The
unregistered rent deed is hit by the
provisions of Section 17 r/w Section
49 of the Registration Act, 1908Temporary injunction could not have
been passed as the secured asset in
question was mortgaged with the bank
and the jurisdiction of civil court was
barred by Section 34 of the SARFAESI
Act, 2002-Thus, O.S. pending in the
Civil Court is dismissed-Respondent
No. 2 is directed to pass an order
afresh for physical possession over the
secured asset to the petitioner within
30 days.(Para 1 to 21)

The writ petition is allowed. (E-6)

List of Cases cited:
Bajarang
Shyam
Sunder
Agarwal
Vs
Central Bank of India & anr. CRLA No.
1371 of 2019

## Text

410 INDIAN LAW REPORTS ALLAHABAD SERIES
those employees who had already been
made entitled to such facility and it gives
the
revised
rates
with
effect
from
01.07.2006. It also refers to such cases
where teaching and non-teaching staff had
already
been
assigned
pension/family
pension/death-cum-retiral
gratuity-cumcommutation of pension at rates which
were higher than the revised rates as
notified
in
the
Office
Order
dated
16.09.2009 and says that in such cases
revision shall not be done to the detriment
of the employee concerned. It refers to
detailed procedure as to how pension has to
be fixed on the basis of emoluments last
drawn by an employee. It also gives the
method of calculating emoluments on
revised rates. In Clause 4(1) of the said
Office Order, mention has also been made
of such teaching and non-teaching staff
who had retired before completing 10 years
of qualifying service being not entitled to
pension but at the same time, says that such
employees would still be entitled to revised
rates of gratuity under the extant Rules. It
also refers to reduction in the minimum
qualifying service for getting full pension
from 33 years to 20 years. Clause 4(4) of
the said Office Order, referring to Clauses
4(2) and 4(3), states that such facility
would be available to teaching and nonteaching staff who had retired on 1.1.2006
or thereafter. Those who had retired before
1.1.2006,
would
get
pension/family
pension/gratuity
and
commutation
of
pension at the rates that were admissible
before the issuance of the said order.

20. This Court after careful perusal
of Office Order dated 16.09.2009 finds
that indeed it refers only to revision of
rates and how the emoluments are to be
calculated for grant of benefit of such
revised
rates.
It
does
not
decide
entitlement. The Government Order dated
30.7.2007
issued
by
the
Principal
Secretary, Government of U.P. decides
entitlement towards gratuity and it refers
to such employees who had been left out
from being given such facility of gratuity
earlier. It was decided by the Government
to extend the facility of gratuity to such
employees on their retirement but such
facility
was
extended
only
with
prospective effect.

21. Having heard the learned counsel
for the petitioner and having perused the
entire material available on record, this
Court finds no good ground to show
interference in the order passed by the
Finance Controller dated 17.2.2014 at this
stage but leaves it open to the petitioner to
approach this Court challenging the
Government Order dated 30.7.2007 or any
other Government Order which decides
the entitlement of the petitioner to get
service gratuity by filing a fresh writ
petition in this regard.

22. The petition stands disposed off
accordingly.
----------
(2022) 8 ILRA 410
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 9412 of 2022

Bank of Baroda ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sandeep Kumar Singh
8 All. Bank of Baroda Vs. State of U.P. & Ors.
411
Counsel for the Respondents:
C.S.C., Sri Vidyapati Tripathi

A.
Civil
Law
-Securitization
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002-Sections 14 & 34 -The petitioner
is a bank whose application rejected
u/s 14 SARFAESI Act on the ground of
temporary injunction passed by civil
court filed by tenant in which the
bank was not a party -an unregistered
lease agreement executed by wife in
favour of her husband conferring right
to him to mortgage and sublet etc.-The
unregistered rent deed is hit by the
provisions of Section 17 r/w Section
49 of the Registration Act, 1908Temporary injunction could not have
been passed as the secured asset in
question was mortgaged with the bank
and the jurisdiction of civil court was
barred by Section 34 of the SARFAESI
Act, 2002-Thus, O.S. pending in the
Civil Court is dismissed-Respondent
No. 2 is directed to pass an order
afresh for physical possession over the
secured asset to the petitioner within
30 days.(Para 1 to 21)

The writ petition is allowed. (E-6)

List of Cases cited:
Bajarang
Shyam
Sunder
Agarwal
Vs
Central Bank of India & anr. CRLA No.
1371 of 2019

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Chandra Kumar Rai, J.)

1. Heard Sri Sandeep Kumar Singh,
learned counsel for the petitioner, Sri
Nimai Das, learned Additional Chief
Standing Counsel for the respondent Nos. 1
& 2 and Sri Vidyapati Tripathi, learned
counsel for the respondent No.5.

2. This writ petition has been filed by
the petitioner - Bank praying for the
following reliefs :

"(a). issue a writ order or
direction in the nature of CERTIORARI
quashing the order dated 17.02.2022
passed by Respondent No.2;

(b) issue a writ order or direction
in the nature of MANDAMUS commanding
the Respondent Nos.2 to pass fresh order
on the Bank's application dated 17.02.2018
in order to hand over the actual physical
possession of the mortgaged property
(specifically detailed in the body of the writ
petition in Para No.4) to the Petitioner
Bank within a stipulated period;"

3. By order dated 06.07.2022, this
Court directed the respondent No.1 (State
of U.P. through the District Magistrate,
Agra), the respondent No.2 (The Additional
District Magistrate (Finance & Revenue),
Agra and the respondent No.5 (Abhimanyu
Singh Director, Eena Cable T.V. Network
Pvt. Ltd., Agra) to file counter affidavit.
The order dated 06.07.2022 is reproduced
below:

"The petitioner is the bank, whose
application under Section 14 of the
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter
referred to as the 'SARFAESI Act') has
been rejected by the impugned order dated
17.2.2022 passed by the respondent no. 2
on the ground that there is a temporary
injunction order passed by the Court of
Additional Civil Judge Senior Division,
Agra in Suit No. 1258 of 2020 filed by the
respondent no. 5/tenant in which the bank
is not a party and since temporary
injunction
is
operating,
therefore,
412 INDIAN LAW REPORTS ALLAHABAD SERIES
possession of the secured asset cannot be
given.

Prima facie, it appears that
neither the civil suit is maintainable nor
the application of the bank under Section
14 of the SARFAESI Act ought to have
been rejected on the ground of temporary
injunction obtained by the tenant, when
the bank was not a party in the suit and
therefore, the temporary injunction so
obtained would not be operative against
the bank in respect of the secured asset. In
paragraph 19 of the writ petition, it has
been alleged that the aforesaid temporary
injunction has been obtained on the basis
of an alleged unregistered lease deed dated
1.8.2010 for a period of 29 years and 8
months which, prima facie, was required to
be compulsorily registered in view of
Section 17 of the Registration Act, 1908
and failure of registration would attract the
consequences under Section 49 of the
Registration Act, 1908.

It further appears that the
order
under
Section
14
of
the
SARFAESI Act on the application of the
petitioner/bank
was
passed
by
the
competent authority on 26.8.2018 by the
Additional District Magistrate (F & R),
Agra. The respondent no. 4/ owner of
the secured asset filed S.A. No. 113 of
2018 in which there is not even a
whisper about the tenancy of the
respondent no. 5. The aforesaid S.A. was
partly allowed by the Debts Recovery
Tribunal, Allahabad by order dated
30.3.2019 on the ground that opportunity
of hearing to the owner/borrower was not
afforded by the ADM (F & R), Agra while
passing the order dated 26.2.2018 under
Section
14 of
the
SARFAESI
Act.
Consequently, the order was quashed and
it was directed that both the parties shall
appear before the ADM (F & R), Agra on
30.4.2019, who shall decide the matter
afresh following principles of natural
justice. It appears that, thereafter, the
respondent no. 5 (alleged tenant) filed a
Suit
No.
1258
of
2020
without
impleading the bank as defendant in
which an interim order was passed
despite bar of jurisdiction of civil court
created
under
Section
34
of
the
SARFAESI Act. Now by the impugned
order, on the ground of temporary
injunction in the aforesaid suit, the
application of the petitioner/bank has
been rejected by the ADM (F & R), Agra
dated 17.2.2022.

In view of the facts as briefly
noted above, the respondent nos. 1, 2
and 5 are directed to file counter
affidavit within a week in which they
shall specifically state that how the
temporary injunction obtained by the
respondent no. 5 is binding on the
petitioner-bank when bank is not party in
the suit. They shall further state that
how the suit is maintainable in respect
of the secured asset in view of Section 34
of the SARFAESI Act. In the counter
affidavit, the respondent nos. 1 and 2
shall show cause how they overlooked the
provisions of Section 34 of the SARFAESI
Act, and the order of this court dated
11.11.2021 in Writ Petition No. 28839 of
2021 and the order dated 24.8.2021 in
Writ Petition No. 7126 of 2021 and the
order of the Debt Recovery Tribunal,
Allahabad dated 30.3.2019 in S.A. No.
113 of 2018.

Put up as a fresh case before the
appropriate Bench on 13.7.2022."

4. Pursuant to the aforequoted order
dated 06.07.2022, the respondent Nos.1 and
2
have
filed
counter
affidavit
on
13.07.2022 while the respondent No.5
prayed for and was granted three days
further time to file counter affidavit.
8 All. Bank of Baroda Vs. State of U.P. & Ors.
413
However, the respondent No.5 has chosen
only to file short counter affidavit dated
20.07.2022. On 20.07.2022, this Court
passed the following order:

"Heard
Sri
Sandeep
Kumar
Singh, learned counsel for the petitioner,
Sri Nimai Das, learned Additional Chief
Standing Counsel for the respondent Nos. 1
& 2 and Sri Vidyapati Tripathi, learned
counsel for the respondent No.5.

Short counter affidavit filed today
by the respondent no.5 and the rejoinder
affidavit to the counter affidavit of the
respondent nos.1 & 2, filed today by the
learned counsel for the petitioner, are
taken on record.

Learned
counsel
for
the
respondent no.5 has produced before us a
copy of plaint of O.S. no.1258 of 2020
alongwith
copy
of
affidavit,
list
of
documents relied upon by the plaintiff and
copies of such documents which as
produced are kept on record.

The respondent no.5 is directed to
file a supplementary counter affidavit
annexing therewith the aforementioned
entire documents i.e. copy of plaint etc.

We also direct the respondent
nos. 1 & 2 to produce the entire records
relating to the order dated 17.02.2022.

Put up tomorrow for further
hearing at 10 AM."

5. On 21.07.2022, this Court passed
the following order:

"Rejoinder affidavit filed today is
taken on record.

Sri Vidyapati Tripathi, learned
counsel for the respondent No.5 prays for
and is granted three days' further time to
enable
the
respondent
No.5
to
file
supplementary
counter
affidavit
in
compliance to the order dated 20.07.2022.
We also direct the Registrar General to
inform this court on the next date fixed,
the name of the Civil Judge (Senior
Division), Agra who passed the interim
order dated 07.12.2020 in O.S. No.1258 of
2020 (Sri Abhimanyu Singh vs. Smt. Rupa
Singh and others).

Put up as a fresh case for further
hearing on 26.07.2022 on 10:00 A.M.

Original Record as produced by
Sri Nimai Das, is returned to him with a
direction to produce it again on the next
date fixed."

6. By order dated 26.07.2022, this
Court directed the Registrar General to
comply with the order dated 21.07.2022
and disclose the name of Judicial Officer,
who passed the interim order dated
07.12.2020 in O.S. No.1258 of 2020. In
compliance to the said order, the Registrar
General has submitted a note dated
26.07.2022 based on the report of the
District Judge, Agra that the interim
order dated 07.12.2020 in O.S. No.1258
of 2020 (Sri Abhimanyu Singh Vs. Smt.
Roopa Singh and others) was passed by
Sri Prashant Kumar - II, Civil Judge
(Senior Division), Agra who is presently
posted in District Judgship, Kushinagar
at Padrauna.

Submissions:-

7.

Learned
counsel
for
the
petitioners submits that the impugned
order is wholly arbitrary and illegal. The
respondent nos. 4 & 5 are in collusion and
have played fraud upon this Court as well
as upon D.R.T. Even after knowing well
that the property in question is mortgaged
in favour of the Bank and recovery
proceedings
are
going
on,
yet
the
respondent
no.5
in
collusion
with
respondent no.4 has filed a suit for
injunction
in
which
they
have
not
414 INDIAN LAW REPORTS ALLAHABAD SERIES
impleaded the petitioner bank as defendant.
Even though the respondent no.5 has not
filed a copy of any alleged rent agreement
or lease deed which has been admitted by
him in Court to be an unregistered one. An
unregistered lease deed can not be executed
for more than 11 months whereas the
respondent no.5 has alleged that it is a lease
deed commencing from the year 2010 and
ending in the year 2039 which is totally
impermissible in view of the provisions of
Section 69 of the Registration Act, 1908
which could not even looked into in view
of provisions of Section 17 read with
Section 69 of the Registration Act 1908.
The respondent no.5 has concealed the
material facts even before this Court while
not filing the copy of the alleged lease deed
and copy of the plaint. The respondent no.5
is the son of the respondent no.4 i.e. the
mortagor and both are in collusion. He
relied upon a judgment of Hon'ble Supreme
Court in Criminal Appeal No.1371 of
2019 (Bajarang Shyam Sunder Agarwal
Vs. Central Bank of India and another)
decided on 11.09.2019.

8.

Learned
Additional
Chief
Standing Counsel submits that since there
was
an
order
of
status-quo
dated
07.12.2020, passed by the Court of
Additional Civil Judge (Senior Division),
Agra in O.S. no. 1258 of 2020 (Abhimanyu
Singh Vs.Smt. Roopa Singh and others)
directing for status-quo, therefore, the
respondent no.2 has correctly passed the
impugned order inasmuch as he could not
violate the order passed by the Additional
Civil Judge (Junior Division), Agra.

9. Learned counsel for the respondent
no.5 submits that the respondent no.5
became tenant of the secured assets under
the rent agreement dated 01.08.2010 for a
period of 11 months @ Rs. 500/- per
month, which later on was extended till the
year 2039. He submits that since the
respondent no.5 is the tenant in the house in
question,
therefore,
he
cannot
be
dispossessed from the house in question in
proceedings under section 14 of the
SARFAESI Act. He further submits that
the respondent no.5 is running a Cable T.V.
Network in the name and style of M/s.
ENA Cable T.V. Network Pvt. Ltd. which
is a Company incorporated under the
Companies Act, 2013, therefore, the
respondent no.5 cannot be dispossessed
from the house in question.

Discussion and Findings:-

10. The petitioner is a bank, whose
application under Section 14 of The
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter
referred to as the 'SARFAESI Act') has
been rejected by the impugned order dated
17.02.2022 passed by the respondent No.2
on the ground that there is a temporary
injunction order passed by the court of
Civil Judge (Senior Division) Agra in O.S.
No.1258 of 2020 filed by the respondent
No.5/ tenant in which the bank is not a
party and since temporary injunction is
operating, therefore, possession of the
secured asset cannot be given. Aggrieved
with this order, the petitioner has filed the
present writ petition.

11. It is admitted fact of the case that
the respondent No.4 namely Smt. Roopa
Singh wife of Sri Pawan Kumar Singh,
resident of 247-Jaipur House, Agra is the
owner of the secured asset who has
mortgaged it with the petitioner - bank for
loan taken by M/s Gayatri Development well
Private Limited. The respondent No.5 is the
son of the respondent No.4. Since the
8 All. Bank of Baroda Vs. State of U.P. & Ors.
415
borrower defaulted in payment of bank dues,
therefore, the petitioner bank initiated
proceedings for recovery of its dues
amounting
to
Rs.2,83,82,364/-
as
on
15.07.2017 and interest and other expenses.
The petitioner bank moved an application
dated 08.01.2018 before the respondent No.1
under Section 14 of the SARFAESI Act,
supported by an affidavit. Application was
registered as Case No.D-201801010000965
and the order dated 26.02.2018 was passed
by the District Magistrate allowing the
application. Aggrieved with that order, the
respondent No.4 namely Smt. Roopa Singh
wife of Pawan Kumar Singh filed S.A.
No.113 of 2018 which was disposed of by the
Debts Recovery Tribunal Allahabad by order
dated 30.03.2019 remitting back the matter to
the respondent No.2 to pass an order afresh
after affording opportunity of hearing to the
respondent No.4. Thereafter, the aforesaid
Section 14 Application of the petitioner was
registered by the respondent No.2 as Case
No.D202001010003247. Since the aforesaid
application
under
Section
14
of
the
SARFAESI Act was being kept pending by
the
respondent
No.2,
therefore,
the
petitioner filed Writ-C No.28839 of 2021
which was disposed of by order dated
11.11.2021 in terms of the judgment in
Writ-C No.7126 of 2021, decided on
24.08.2021. The relevant portion of the
aforesaid
order
of
this
Court
is
reproduced below:

"Accordingly, we dispose of the
writ petition with a direction that the
instant
proceedings
be
concluded
necessarily within a period 30 days' unless
there is any legal impediment in the nature
of any stay order obtained by the competent
court. "

12. Thereafter in the aforesaid
pending application of the petitioner under
Section 14 of the SARFAESI Act, the
respondent No.5 namely Abhimanyu Singh
Director, Eena Cable T.V. Network Pvt.
Ltd., Agra filed an objection dated
30.12.2021 on the ground that physical
possession of the property cannot be given
to the petitioner inasmuch as he (the
respondent No.5) is the tenant on the
strength of a lease agreement dated
01.08.2010
which
is
effective
till
31.12.2039.

13. In Paras 3, 5, 6, 12, 14 and 15 of
his short counter affidavit, the respondent
No.5 has stated as under:-

"3. That the secured assets
no.247 Jaipur House was lease out by
respondent no. 4 in favour of Director of
Ena Cable T.V. Network Pvt. Ltd. namely
Pawan Kumar Singh Agreement dated
01.08.2010, initially lease was agreed for a
period of 11 months on rent of 500/- but
later on it was extended till 2039 on
depositing of Rs. 7 Lacs as advance money
and rectified rent of Rs. 2,000/- per month.

5. That the petitioner bank was
approved a credit facility to Gayatri
developmet Pvt. Ltd. on the nortgage
property Khasra No. 831, 832, 838, 839,
Mauza Sikandra Bahistabad, Agra but later
on Plot no. 247 Jaipur house, Lohamandi
Ward, Agra was substituted on the above
mentioned
Khasra
Numbers
on
31.12.2012 with duly signature by assistant
General Manager S.N. Singh and Gayatri
Development Pvt. Ltd. Director Devendar
Dixit. For kind perusal of this Hon'ble
Court, a true copy of the notification of the
credit facility dated 31.12.2012 is being
filed herewith and marked as Annexure
No. SCA-2 to this affidavit.

6. That it is noteworthy that
petitioner's bank and Gayatri Development
Pvt. Ltd. were substituted the Plot No.247
416 INDIAN LAW REPORTS ALLAHABAD SERIES
Jaipur House in which Rupa Singh was
added as the Guarantor for collateral
security, purpose behind that was just to
eviction the business of Ena Cable
Netwfork from the House No.247, Jaipur
House. After the substitution of Security, a
credit facility was also enhanced from
Rs.245 lacs to 270 lacs and this fact itself
verifying from the terms and condition of
between petitioner bank and Director of
Gayatri Development Pvt. Ltd. For kind
perusal of this Hon'ble Court, a true copy
of the Terms and condition of the credit
facility between petitioner's bank and
Director of Tayatri Development Pvt. Ltd.
is being filed herewith and marked as
Annexure No.SCA-3 to this affidavit.

12. That the secured property 247
Jaipur House was lease out in 2010 while
the credit facility in favour of respondent
no.2 by petitioner bank was rendered in
2012 and thus it is quite clear that the
property was lease out before the secured
to the bank.

14. That the petitioner bank well
known while sanctioning the credit facility
to Gayatri Development Pvt. Ltd. that the
House No.247 Jaipur house had already
given on rent by respondent no.4 to
Director of Ena Cable T.V. Network
namely Pawan Singh, despite of That
petitioner bank sanction the credit facility
in favour of respondent no.3 by substituting
the secured assets 247 Jaipur House with
collusion of respondent no.4.

15. That the Civil Suit for
Interim Injunction No.1258 of 2020
Abhimanyu Singh Vs. Smt. Rupa Singh
has not finally been decided and the court
concerned vide its order dated 07.12.2020
has simply ordered for status quo and
further the case is listing for final
hearing, therefore petitioner bank has
ample opportunity to appear in the above
civil suit and defending its grievances. For
kind perusal of this Hon'ble Court, a true
copy of the order of Civil Judge Senior
Division Agra dated 07.12.2020 is being
filed herewith and marked as Annexure
No.SCA-5 to this affidavit."

14. The application of the petitionerbank for physical possession by the
impugned order dated 17.02.2022; was
rejected by the respondent No.2 observing
as under:

^^esjs }kjk i=koyh dk voyksdu fd;kA
i=koyh ds voyksdu ls fofnr gksrk gS fd cSad dh
vksj ls cU/kd lEifRr dk dCtk fnyk;s tkus ds
lEcU/k esa izLRkqr izkFkZuk i= ,oa ek0 mPPk U;k;ky; esa
nkf[ky fjV ;kfpdk esa fdjk;snkj Jh vfHkeU;q flag
dks i{kdkj ugh cuk;k x;k vkSj uk gh ek0 mPPk
U;k;ky; dks ;g voxr djk;k x;k gS fd mDr
ca/kd lEifRr ds lEcU/k esa ;FkkfLFkfr cuk;s j[kus dk
vkns'k ek0 vij flfoy tt 1⁄4lh0 fM01⁄2] vkxjk }kjk
ikfjr fd;k x;k gSA blh izdkj Jh vfHkeU;q flag
}kjk Hkh okn la[;k 1258@2020 esa ek0 vij flfoy
tt 1⁄4lh0 fM01⁄2] vkxjk dks lEifRr ds ca/kd gksus dh
dksbZ tkudkjh ugha nh x;h gS vkSj uk gh cSad dks
i{kdkj cuk;k x;k gSA ek0 mPPk U;k;ky;] bykgkckn
}kjk ikfjr vkns'k fnukad 11-11-2021 esa ;kfpdk
la[;k 7126@2021 fnukad 24-08-2021 esa ikfjr vkns'k
ds vuqlkj fuLrkfjr dh x;h gS ,oa fnukad 24-8-2021
dks ikfjr vkns'k esa ek0 mPPk U;k;ky; }kjk ikfjr
vkns'k esa Li"V #Ik ls ;g funsZ'k fn;k x;k gS fd
fdlh fof/kd ck/kk tSLks fd l{ke U;k;ky; }kjk
LFkxu vkns'k vkfn u gksus dh n'kk esa ;kfpdk 30
fnu esa fuLrkfjr djsaA orZeku izdj.k esa ek0 vij
flfoy tt1⁄4lh0 fM01⁄2] vkx jk }kjk ca/kd LkEifRr ds
lEcU/k esa ;FkkfLFkfr cuk;s j[kus ds vkns'k ds izHkkoh
jgrs ca/kd lEifRr ij ;kph cSad dks HkkSfrd dCtk
fnyk;k tkuk mfpr izrhr ugha gksrk gSA

vkns'k

mijksDr foospuk ,oa ftyk 'kkldh;
vf/koDrk flfoy] vkxjk }kjk fn;s x;s fof/kd
vfHker ls lger gksrs gq;s izLrqr ;kfpdk fnukad
17-01-2018 vLohdkj dh tkrh gSA ;kph cSad
l{ke ek0 flfoy U;k;ky;] vkxjk esa mifLFkr
gksdj viuk i{k j[kdj LFkxu vkns'k fujLr
djkus ds mijkUr iqu% ;kfpdk izLrqr djus gsrq
Lora= gSA i=koyh okn vko';d dk;Zokgh
nkf[ky nQ~rj gksA^^
8 All. Bank of Baroda Vs. State of U.P. & Ors.
417

15. We find that the respondent
No.5 namely Abhimanyu Singh is the son
of
Pawan
Kumar
Singh
and
the
respondent No.4 namely Smt. Roopa
Singh is is mother. Thus, Pawan Kumar
Singh and Roopa Singh are husband and
wife
and
the
respondent
No.5
-
Abhimanyu Singh is their son.

16. Pursuant to our order dated
20.07.2022, the respondent No.5 has
produced before us a copy of plaint of O.S.
No.1258 of 2020 filed by him. Perusal of
the plaint shows that the respondent No.5
has consciously suppressed the fact that
Roopa Singh (the defendant No.1) and
Eena Cable T.V. Network Pvt. Ltd. through
its proprietor Sri Pawan Kumar Singh (the
defendant No.2) are his parents. Along with
the plaint, a copy of alleged unregistered
lease agreement dated 01.08.2010 was filed
by which it has been shown that Roopa
Singh has given the secured asset in
question on rent of Rs.500/- per month for
11 months to her husband Pawan Kumar
Singh. According to the plaintiff of the
suit/
respondent
No.5
herein,
that
unregistered rent deed dated 01.08.2010
allegedly executed by Roopa Singh
(respondent No.4 herein) authorised the
defendant No.2 (Pawan Kumar Singh) to
assign, transfer, lease, mortgage, sublet
or grant lease and licence or transfer or
part with or sell the property to any
person/ company etc. Such an alleged
instrument
needs
compulsory
registration in view of Section 17(1)(b) of
the Registration Act, 1908 inasmuch as
according to the respondent No.5, it created
a right in Pawan Kumar Singh in respect of
immovable property in question to assign,
transfer, lease, mortgage, sublet, transfer of
property etc. Such an alleged instrument
cannot be received as evidence of any
transaction effecting the property in
question or conferring the aforesaid
powers in view of Section 49 of the
Registration Act, 1908. As per story
developed in paragraph-3 of the plaint, the
alleged registered lease deed dated
23.02.2019 was executed by Pawan
Kumar Singh in favour of his son
Abhimanyu Singh (respondent No.5) in
respect of the secured asset in question
and not by its owner namely Roopa Singh
(respondent No.4). This alleged registered
lease deed is for a period of 29 years
from 01.01.2011 to 31.12.2039, which
was executed on 23.02.2019, i.e. much
after the secured asset in question was
mortgaged and the recovery proceedings
under the SARFAESI Act was initiated
by the petitioner - bank in respect of
secured asset to recover the dues. Neither
the alleged unregistered agreement nor
alleged registered deeds were ever
brought to the notice of the authorities/
DRT nor any such objection was raised
although the respondent Nos.4 and 5
who are mother and son. Thus, the facts
and circumstances noted above and the
effect of Section 17 read with Section 49 of
the Registration Act, leaves no manner of
doubt that the alleged unregistered lease
agreement dated 01.08.2010 was between
the respondent No.4, i.e. Roopa Singh and
her husband Pawan Kumar Singh and,
thereafter, the alleged rent lease deed
23.02.2019 executed by Pawan Kumar
Singh in favour of his son Abhimanyu
Singh (respondent No.4) are nothing but a
manipulated and fraudulent piece of
paper
which
cannot
deprive
the
petitioner - bank for physical possession
of the secured asset in question under
Section 14 of the SARFAESI Act.

17. The Civil Judge (Senior Division)
Agra passed the interim order dated
07.12.2020 in O.S. No.1258 of 2020 (Sri
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Abhimanyu Singh vs. Roopa Singh and
others), which is reproduced below:

^^fnukad & 07@12@2020

i=koyh is'k gqbZA iqdkj ij oknh ds
fo}ku vf/koDrk mifLFkrA

i=koyh is'k gqbZA oknhx.k dh vksj ls
varfje fu"ks/kkKk gsrq izkFkZuki= 8x e; 'kiFki= 9x
izLrqr fd;k x;k gSA

izkFkZuki= 8x e; 'kiFki= 9x ij oknh
ds fo}ku vf/koDrk dks ,d i{kh; #i ls lquk ,oa
i=koyh ij miyC/k leLr izi=ksa dk voyksdu fd;kA

oknh dh vksj ls dFku fd;k x;k gS fd
mlus izfroknh la0 2 us izfroknh la0 1 ls oknxzLr
lEifRr dks yht ,xzhesUV fnukafdr 01&08&2010 ds
ek/;e ls 500@& #Ik;s izfrekg dh nj ls fdjk;s ij
fy;k FkkA yht ,xzhesUV fnukafdr 01&08&2010 esa
;g Li"V #i ls mfYyf[kr gS fd izfroknh la0 2
oknxzLr lEifRr dks vkxs ca/kd j[k ldrk gS ;k
fdlh vU; dks fdjk;s ij Hkh ns ldrk gSA izfroknh
la0 2 }kjk lEifRr la0 247 t;iqj gkml] yksgke.Mh
okMZ vkxjk dh ckcr oknh ds i{k esa fnukad
23&02&2019 dks ,d yht ,xzhesUV fnukad
01&1&2011 ls 31&12&2039 rd 2000@& #i;s
izfrekg dh nj ls fu"ikfnr fd;k x;k FkkA izfroknh
la0 1 o 2 nqfHkZlaf/k dj oknh dks oknxzLr lEifRr ls
tcjnLrh fcuk fof/kd izfdz;k viuk;s gq;s csn[ky
djuk pkgrs gSaA ;fn izfroknhx.k ,slk djus esa lQy
gks tkrs gS rks oknh dks viw.kZuh; {kfr dkfjr gksxh
vkSj mldk okn nk;j djus dk mn~ns'; gh foQYk gks
tk;sxkA

oknh dh vksj ls vius dFku ds leFkZu esa
yht ,xzhesUV fnukafdr 01&08&2010 9x@6 yxk;r
9x@9] vflLesUV 9x@10 o 9@11] fdjk;kukek
fnukafdr
23&02&2019
9x@13
ls
9x@16]
lkfVZfQdsV vkQ budkjiksjs'ku 9x@17] jftLVsa'ku
lkfVZfQdsV 9x@18 yxk;e 9x@20] bZ0 ,u0 ,0 Vh
oh usVodZ ls lacaf/kr izi= 9x@21 yxk;r 9x@24]
Lo;a ds vk/kkj dkMZ 9x@25 o 9x@26] lgk0
vfHk;Urk lEifRr] vkxjk fodkl izkf/kdj.k }kjk
Jherh #ik flag dks fy[kk x;k i= fnukafdr
19&07&18 9x@27] pkyku QkeZ 9x@28] #ik flag
}kjk Jheku ftykf/kdkjh@rglhynkj lnj dks fy[ks
i= 9x@29] 'kiFki= 9x@30] c;ku larks"k xqIrk
9x@31] c;ku iou lkjkLor 9x@32] #ik flag }kjk
lfpo vkxjk fodkl izkf/kdj.k dks fy[ks i= fnukafdr
01&07&10 9x@33] lekpkj i= dh dfVax ix@34]
bZ0 ,u0 ,0 dscy Vh oh usVodZ ds uke iathd`r
okgu ds iath;u izek.k i= 9x@35 o QksVksxzkQ
9x@36 o 37] fdjk;k izkfIr dh jlhnsa 9x@38 o
9x@39 dh Nk;kizfr;ak nkf[ky dh x;h gSA

i=koyh ij miyC/k izi=ksa ds voyksdu
ls orZeku izdj.k esa okn ds rF; ,oa ifjfLFkfr;ksa dks
n`f"Vxr j[krs gq, rFkk oknxzLr lEifRr dks lqjf{kr o
lajf{kr j[kus ds mn~ns'; ls oknxzLr lEifRr ds laca/k
esa ;FkkfLFkfr dk;e j[kus dk vkns'k ikfjr fd;k tkuk
U;k;ksfpr gksxkA

&vk ns 'k&

rnuqlkj i{kdkjksa dks vknsf'kr fd;k tkrk
gS fd os oknxzLr lEifRr ds laca/k esa ;FkkfLFkfr dk;e
j[ksaxsA

oknh vkns'k 39 fu;e 3 lhihlh dh
vuqikyu vfoyEc djsaA i=koyh okLrs fuLrkj.k 8x
fnukad 21&12&2020 dks is'k gksA^^

18. We are unable to understand
that how and under what circumstances
the afore-quoted interim order has been
passed when the Civil Judge (Senior
Division), Agra who himself has noted
that the alleged unregistered lease
agreement dated 01.08.2010 executed by
Roopa Singh in favour of her husband
Pawan Kumar Singh conferring right to
him to mortgage and sublet etc. The
alleged unregistered rent deed is hit by
the provisions of Section 17 read with
Section 49 of the Registration Act, 1908.
The aforesaid interim order could not
have been passed as the secured asset in
question was mortgaged with the bank
and the jurisdiction of civil court was
barred by Section 34 of the SARFAESI
Act, 2002. Thus, the aforesaid O.S.
No.1258 of 2020 could not have been
entertained by the Civil Judge.

19. Although all the facts as noted in
forgoing paragraphs of this judgment were
well
within
the
knowledge
of
the
respondent No.2 and yet he passed the
impugned order dated 17.02.2022 on the
alleged legal advice of the District
Government Counsel (Civil), Agra dated
05.01.2022.
8 All. Smt. Ganga Devi & Ors. Vs. State of U.P. & Ors.
419

20. For all the reasons afore-stated,
the impugned order dated 17.02.2022
passed by the respondent No.2 in Case
No.03247 of 2020 (Computerised Case
No.D202001010003247) (Bank of Baroda
vs. M/s Gayatri Development well Private
Limited)
under
Section
14
of
the
SARFAESI Act, 2002, cannot be sustained
and is hereby quashed. The respondent
No.2 is directed to pass an order afresh for
physical possession over the secured asset
in question to the petitioner under Section
14 of the SARFAESI Act, 2002 within 30
days from the date of production of a
certified copy of this order. Since the O.S.
No.1258 of 2020 is barred by provisions of
Section 34 of the SARFAESI Act,
therefore, to meet the ends of justice, the
aforesaid O.S. No.1258 of 2020 pending in
the court of Civil Judge/ Additional Civil
Judge (Senior Division) Agra, is herby
dismissed.

21. The writ petition is allowed to
the extent indicated above.
----------
(2022) 8 ILRA 419
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2017

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Civil Misc. Writ Petition No. 52727 of 2008

Smt. Ganga Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hitesh Pachori

Counsel for the Respondents:
C.S.C., Sri Nirpendra Mishra, Sri Rajesh
Tripathi

A. Civil Law - Electricity Act, 2003Sections 53& 161 - Electricity Rules,
2005-claims-deceased
died
due
to
electrocution by a live electricity wire-the
petitioners reported the same following
the procedure u/s 161 of the Act-but the
Department
absolves
the
officials
responsibilities as per section 53 of the
Act and termed the accident as vis majorthere cannot be any doubt as regards the
sole cause of demise of the deceased
being electrocution-Since the distribution
line was maintained and owned by the
UPPCL, the UPPCL, in any event, cannot
avoid
liability
thereof-claimants
are
entitled for award of Rs. 1 lac in view of
the circular issued by State Government
dated 19 june 2008.(Para 1 to 17)

B.The law is well-settled that, even in
Tort, if not in statutes, the remedy of
compensation is available to a victim or
his family in the event of an accidental
death like electrocution. That, coupled
with
the
strict
liability
principle
formulated by the Supreme Court in
various cases, clearly indicates that, in the
present case, the UPPCL was liable for
payment of adequate compensation to the
petitioner.(Para 2 to 13) (E-6)
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.
&
Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioners and Sri Niprendra Mishra,
learned counsel for the respondent nos. 2
and 3 and learned Standing Counsel for the
respondent no.1.

2. This writ petition prays for a
mandamus
directing
the
respondentElectricity
Department
to
pay
damages/compensation to the tune of Rs. 6