CWP No. 2756 of 2011 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No. 2756 of 2011
Date of decision July 6 , 2011
Jasmer Singh
....... Petitioner
Versus
Authorized Officer, Union Bank of India, Regional Office, Chandigarh
and another
........Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Umesh Narang, Advocate
for the petitioner.
Mr. Yogesh Goyal, Advocate
for the respondents.
****
1. Whether reporters of local papers may be allowed
to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the
digest?
K. Kannan, J (oral).
1. The petitioner is before this Court in a writ petition
contending that the Bank was taking action for enforcement of a mortgage
against the petitioner as though he was a guarantor for the loan granted to
another person by name M/s Hari Om Tyres. The petitioner was relying
upon a letter issued by the General Manager of the Bank to the Patwari,
Barnala stating that the property mortgaged through a simple mortgage
deed was being released and directing the Patwari to release the property.
The Bank had its own explanation to give to this to contend that this
release was not meant to be in respect of the petitioner’s property.
2. It is an admitted case that the petitioner had
CWP No. 2756 of 2011 2
originally filed a civil suit and that the petitioner himself had doubts about
the maintainability of such an action. In contemplation of his intention to
withdraw the civil suit, the writ petition had been filed. It appears that the
suit was subsequently withdrawn. Even when the writ petition was before
this Court the petitioner had also preferred an appeal to the Debt Recovery
Tribunal under Section 17 against an order for sale and possession of the
property purported to be taken under the SARFAESI Act, 2002. The
counsel for the petitioner states that he has now instructions from his client
to withdraw the appeal before the DRT and he is keen to prosecute the writ
petition.
3. The issue whether any fraud had been practised
on the petitioner for securing guarantee is an issue of fact particularly when
there is a registered mortgage executed by the petitioner in favour of the
Bank and not merely a creation of a mortgage by deposit of title deed,
when the signatures of the petitioners could have been obtained on papers.
The issue whether a letter given by the Bank to the Patwari would bind the
Bank to allow the petitioner to plead a discharge and the other issue
whether the mortgage could be treated as discharged by such a letter in
accordance with law would be matters that would require to be considered
again for adjudication by a Court of fact. There is prima facie no bar
against a guarantor from enforcing its security under the SARFAESI Act
unless the issue relating to the validity of the mortgage and the contention
of the petitioner for discharge of the loan are established by appropriate
evidence. I do not think the remedy before this Court in a writ jurisdiction
will be appropriate.
4. If the petitioner seeks for revival of his appeal for
prosecution before the DRT or any attempt by the petitioner to establish the
mortgage is not enforceable, the Bank will join issues on the tenability of
such a contention without taking any objection about the fact that the writ
CWP No. 2756 of 2011 3
petition was filed and that it has come to be disposed of before this Court.
5. The writ petition is therefore disposed of with an
observation that the petitioner will have an independent remedy in an
appropriate forum in accordance with law and the Bank will be entitled to
take up all the defences other than the defence that this disposal of the writ
petition will constitute any bar for the petitioner to pursue his remedy. The
petitioner will be at liberty to approach the alternative forum for any interim
order.
(K. KANNAN)
JUDGE
July 6, 2011
archana