# Smt. Radha Shukla & Anr v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** Misc. Bench No. 22784 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-radha-shukla-anr-v-state-of-u-p-ors-46278
- **Pages:** 5

## Headnote

Civil Law
-Constitution of India,
Article
226
-
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 (SARFAESI), S. 17 - Auction sale
by Bank - auction challenged under
Article 226 - Held - efficacious remedy
of questioning the auction proceedings
as well as the sale certificate under
Section 17 of the Act, 2002 before the
Debt Recovery Tribunal, hence the
instant
writ
petition
is
not
maintainable (Para 13)

Dismissed. (E-5)

List of Cases cited :

## Text

10 All. Smt. Radha Shukla & Anr. Vs. State of U.P. & Ors.
1017
opportunity
of
hearing.
With
these
observations, we decline to interfere with
the impugned order.

14. With these observations, this
petition is disposed of.
----------
(2021)10ILR A1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 22784 of 2021

Smt. Radha Shukla & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ashish Kumar Rastogi

Counsel for the Respondents:
C.S.C., Anand Kumar Singh

Civil Law
-Constitution of India,
Article
226
-
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 (SARFAESI), S. 17 - Auction sale
by Bank - auction challenged under
Article 226 - Held - efficacious remedy
of questioning the auction proceedings
as well as the sale certificate under
Section 17 of the Act, 2002 before the
Debt Recovery Tribunal, hence the
instant
writ
petition
is
not
maintainable (Para 13)

Dismissed. (E-5)

List of Cases cited :

1.
Harshad
Govardhan
Sondagar
Vs
International Assets Reconstruction Company
Ltd. & ors. (2014) 6 SCC 1
2. Mathew Varghese Vs M. Amritha Kumar &
ors. (2014) 5 SCC 610

3. United Bank of India Vs Satyawati Tandon &
ors. 2010 (8) SCC 110

4. Standard Chartered Bank Vs V. Noble Kumar
& ors. (2013) 9 SCC 620

5. I.C.I.C.I. Bank Limited & ors. Vs Umakanta
Mohapatra & ors. 2019 13 SCC 497

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) Heard Sri Ashish Kumar Rastogi,
learned Counsel for the petitioners, Sri
Amitabh Rai, learned Additional Chief
Standing Counsel for the State/respondents
no. 1 and 2 and Sri Anand Kumar Singh,
learned
Counsel
for
the
respondent
no.3/Bank.

(2) The instant writ petition under
Article 226 of the Constitution of India has
been filed by the petitioners, Smt. Radha
Shukla, Ajay Kumar Shukla, challenging
the
auction
sale
performed
by
the
respondent no.3/Bank on 18.08.2021. The
petitioners are also seeking a writ of
mandamus directing the respondents to not
interfere in the peaceful possession of the
petitioners.

(3) It appears that the petitioners took
housing
loan
of
Rs.8,00,000/-
on
12.06.2013 and thereafter Rs.4,00,000/- in
the year 2014, for the purpose of
construction of house, from the respondent
no.3-UCO Bank, Branch Office, Barabanki
after mortgaging House No. L-5/98, Awas
Vikas Colony, Obari Awas Yojna, District
Barabanki and paid regular installments till
2018 as per the agreement executed
between
them
and
the
respondent
no.3/Bank but on account of financial
constraint and illness, the petitioners failed
to pay the balance outstanding amount as
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
per the agreement, hence proceedings for
recovery of the outstanding amount under
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter
referred to as "Act, 2002") has been
initiated against the petitioners.

(4)

Learned
Counsel
for
the
petitioners has argued that on 12.09.2018,
the respondent no.3/Bank has issued
demand notice under Section 13 (2) of the
Act, 2002, requiring the petitioners to pay
Rs.11,07,122.17/-.
On
receipt
of
the
aforesaid demand notice, the petitioners
approached the respondent no.3/Bank and
sought time for repayment of his dues on
humanitarian
grounds
but
the
bank
authorities have informed them that they
have
to
deposit
Rs.11,07,122.17/-,
otherwise the auction proceedings under
Act, 2002 would be initiated against them.
Subsequently, the respondent no.3/Bank
filed a suit, bearing no. 21 of 2020
(Computerized No. D202004120000004 :
UCO Bank Vs. Ajay Kumar Shukla) for
taking possession of secured assets of the
petitioners mortgaged against the aforesaid
loan amount before the District Magistrate,
Barabanki under Section 14 of the Act,
2002, in which notice was issued to the
petitioners on 01.01.2020. In pursuance of
the notice, the petitioners appeared before
the District Magistrate, Barabanki and filed
an application for grant of time to deposit
the loan installment, to which the District
Magistrate,
Barabanki
allowed
his
application
and
fixed
the
date
on
05.02.2020. On 05.02.2020, the petitioner
appeared before the District Magistrate,
Barabanki again and informed the District
Magistrate, Barabanki that amount of
Rs.15,000/- has been deposited by him in
the branch of the respondent no.3/Bank and
moved an application for grant of further
time to deposit the balance amount in the
installments.
In
the
meantime,
the
petitioners tried to approach the respondent
no.3/Bank for depositing the outstanding
amount as indicated in the demand notice
dated 19.09.2018 but it was informed by
the officers of the respondent no.3/Bank
that they have to appear befor the District
Magistrate and the respondent no.3/Bank
will follow the order of the District
Magistrate, Barabanki.

(5)

Learned
Counsel
for
the
petitioners submits that during pendency of
the aforesaid suit, the respondent no.3/Bank
published
e-auction
notice
of
the
petitioners' property on 02.08.2021 under
Section 6 (2) and 8 (6) of the Security
Interest (Enforcement) Rules, 2002 in daily
newspaper stating therein that respondent
no.3/Bank has taken the possession of the
petitioners' property and it is going to
perform e-auction on 18.08.2021, without
giving any notice or information through
any mode to the petitioners.

(6) It has been argued by the learned
Counsel for the petitioners that in terms of
Rule
8
of
the
Security
Interest
(Enforcement) Rules, 2002, the authorized
officer is bound to issue possession notice
in the format as provided in Appendix-IV
to the borrower by affixing the possession
notice on the outer door or at such
conspicuous place of the property. In
addition to this, Rule 8 (2) further provides
that
the
possession
notice
shall
be
published in two leading newspapers. Rule
8 (6) provides that the authorized officer
shall serve the borrower a notice of 30 days
for sale of the immovable secured assets
under sub-rule (5). He argued that the
respondent no.3/Bank has not followed the
aforesaid rules, as the public notice as
published by the respondent/Bank clearly
10 All. Smt. Radha Shukla & Anr. Vs. State of U.P. & Ors.
1019
demonstrates that it is a notice of sale of
property not a possession notice as
stipulated and provided under Rule 8 of the
Rules, 2002. His submission is that the
entire auction proceedings initiated by the
authorities of the respondent no.3/Bank
under Act, 2002 are void ab initio, hence
the same is liable to be quashed.

(7) In support of the aforesaid
submissions, learned Counsel for the
petitioners
has
placed
reliance
upon
judgments of the Apex Court in Harshad
Govardhan Sondagar Vs. International
Assets Reconstruction Company Ltd.
and others : (2014) 6 SCC 1 and Mathew
Varghese Vs. M. Amritha Kumar and
others : (2014) 5 SCC 610.

(8) Per contra, learned Counsel for the
respondent no.3/Bank submits that the
auction of the property in question has
already been held and the same has also
been confirmed. He further argued that in
view of the decision of the Apex Court in
the case of United Bank of India Vs.
Satyawati Tandon and others : 2010 (8)
SCC
110,
the
petitioners
have
an
efficacious remedy of questioning the
auction proceedings as well as the sale
certificate under Section 17 of the Act,
2002 before the Debt Recovery Tribunal,
hence the instant writ petition is not
maintainable.

(9)

We
have
examined
the
submissions of the learned Counsel for the
parties and gone through the record.

(10) Admittedly, the petitioners are
the defaulter of the loan account and they
have a remedy under Section 17 (1) of the
Act, 2002 to approach the Debt Recovery
Tribunal.
Therefore,
no
ground
for
interference is made out particularly, in
view of the judgement of the Supreme
Court in the case of United Bank of India
vs. Satyawati Tandon and others : (2010)
8 SCC 110, wherein the Apex Court in
paragraph 42 & 43 h

"42. There is another reason why
the impugned order should be set aside. If
Respondent 1 had any tangible grievance
against the notice issued under Section
13(4) or action taken under Section 14,
then she could have availed remedy by
filing an application under Section 17(1).
The expression "any person" used in
Section 17(1) is of wide import. It takes
within its fold, not only the borrower but
also the guarantor or any other person who
may be affected by the action taken under
Section 13(4) or Section 14. Both, the
Tribunal and the Appellate Tribunal are
empowered to pas interim orders under
Sections 17 and 18 and are required to
decide the matters within a fixed time
schedule. It is thus evident that the
remedies available to an aggrieved person
under
the
SARFAESI Act
are
both
expeditious and effective.

43. Unfortunately, the High Court
overlooked the settled law that the High
Court will ordinarily not entertain a
petition
under
Article
226
of
the
Constitution if an effective remedy is
available to the aggrieved person and that
this rule applies with greater rigour in
matters involving recovery of taxes, cess,
fees, other types of public money and the
dues
of
banks
and
other
financial
institutions. In our view, while dealing with
the petitions involving challenge to the
action taken for recovery of the public
dues, etc. the High Court must keep in mind
that the legislations enacted by Parliament
and State Legislatures for recovery of such
dues are a code unto themselves inasmuch
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
as they not only contain comprehensive
procedure for recovery of the dues but also
envisage constitution of quasi-judicial
bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such
cases, the High Court must insist that
before availing remedy under Article 226
of the Constitution, a person must exhaust
the remedies available under the relevant
statute."

(11) In the case of Standard
Chartered Bank Vs. V. Noble Kumar
and others : (2013) 9 SCC 620, the Apex
Court in paragraph 27 has held as under:

"27.The "appeal" under section
17 is available to the borrower against any
measure taken under section 13(4). Taking
possession of the secured asset is only one
of the measures that can be taken by the
secured creditor. Depending upon the
nature of the secured asset and the terms
and conditions of the security agreement,
measures other than taking the possession
of the secured asset are possible under
section 13(4). Alienating the asset either by
lease or sale, etc. and appointing a person
to manage the secured asset are some of
those possible measures. On the other
hand, section 14 authorises the Magistrate
only to take possession of the property and
forward the asset along with the connected
documents to the borrower (sic the secured
creditor). Therefore, the borrower is
always entitled to prefer an "appeal" under
section 17 after the possession of the
secured asset is handed over to the secured
creditor. Section 13(4)(a) declares that the
secured creditor may take possession of the
secured assets. It does not specify whether
such a possession is to be obtained directly
by the secured creditor or by resorting to
the procedure under section 14. We are of
the opinion that by whatever manner the
secured creditor obtains possession either
through the process contemplated under
section 14 or without resorting to such a
process obtaining of the possession of a
secured asset is always a measure against
which a remedy under section 17 is
available."

(12) In I.C.I.C.I. Bank Limited and
Others v. Umakanta Mohapatra and
Others : 2019 13 SCC 497, the Apex Court
has held as under :-

"Delay Condoned.

Leave granted.

Despite several judgements of this
Court, including a judgment by Hon'ble Mr.
Justice Navin Sinha, as recently as on
30.01.2018 , in Authorized Officer, State Bank
of Travancore and Anr. vs. Mathew K.C.,
(2018) 3 SCC 85, the High Courts continue to
entertain matters which arise under the
Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act,
2002 (SARFAESI), and keep granting interim
orders in favour of persons who are NonPerforming Assets (NPAs).

The writ petition itself was not
maintainable, as a result of which, in view of
our recent judgment, which has followed earlier
judgments of this Court, held as follows :

"18. We cannot help but disapprove
the approach of the High Court for reasons
already noticed in Dwarikesh Sugar Industrict
Ltd. vs. Prem Heavy Engineering Works (P)
Ltd. and Another, (1997) 6 SCC 450, observing
:-

"32. When a position, in law, is
well settled as a result of judicial
pronouncement of this Court, it would
10 All. Satypal Singh & Ors. Vs. Manoj Kumar & Ors.
1021
amount to judicial impropriety to say the
least, for the subordinate courts including
the High Courts to ignore the settled
decisions and then to pass a judicial order
which is clearly contrary to the settled
legal position. Such judicial adventurism
cannot be permitted and we strongly
deprecate the tendency of the subordinate
courts in not applying the settled principles
and in passing whimsical orders which
necessarily has the effect of granting
wrongful and unwarranted relief to one of
the parties. It is time that this tendency
stops."

The writ petition, in this case,
being not maintainable, obviously, all
orders passed must perish, including the
impugned order, which is set aside.

The appeals are allowed in the
aforesaid terms.

Pending applications, if any,
shall stand disposed of."

(13) In view of the aforesaid
judgments of the Apex Court, this writ
petition
is
not
maintainable
as
the
petitioners have a remedy by way of filing
of application/appeal under Section 17(1)
of the Act, 2002.

(14) The judgments, which have been
placed reliance by the learned Counsel for
the petitioners, are not applicable in the
facts and circumstances of the case.

(15) The writ petition is dismissed, as
not maintainable.
----------
(2021)10ILR A1021
APPELLATE JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

FAFO No. 3390 of 2016

Satypal Singh & Ors. ...Appellants
Versus
Manoj Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Nipun Singh, Sri Sumit Suri

Counsel for the Respondents:
GA, Sri Atul Kumar Srivastava

Criminal Law - Motor Vehicles Act,1988 -
Section 166 - Claim petition - Pleading -
what has not been contended in the
written statement cannot be permitted to
be proved which is beyond record - where
the pleadings are silent, the same cannot
be agitated so as to dismiss the claim of
the claimants
Tribunal rejected claim petition - Tribunal felt
there is collusion between the parties - No
rebuttal evidence led by insurance company -
W.S. totally silent on the point involvement of
any other vehicle in the accident and that it
has sent the matter for - All of a sudden
without amending W.S. private investigator
produced by insurance company - Insurance
company did not produce investigator's report
- on what basis private investigator found that
another vehicle was involved is not projected-
no reason to falsely implicate a vehicle -
insurance company not led any evidence that
the vehicle has been falsely implicated -
police
authorities
never
summoned
by
Tribunal - judgment passed on surmises &
conjectures that there is fraud, deception and
cheating investigation - Order rejecting claim
petition, set aside - Matter remitted back to
Tribunal to decide the issue of negligence &
quantum of compensation (Para 10, 11,12)

Allowed. (E-5)