9911796707
TMI Blog2012 (10) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... o, in turn, had sold the same to the writ petitioner by sale deed dated 29.08.2001. The aforesaid sale by the original owners to the vendors of the writ petitioner and, thereafter, by said vendors to the petitioner himself was made when the property stood mortgaged in favour of the UPFC. It is in the above circumstances, that the writ petitioner had approached the High court seeking interference with the sale of the property made in favour of the fifth respondent pursuant to the advertisement dated 20.10.2002 issued by the UPFC and further for transfer of the property in favour of the writ petitioner besides restoration of possession thereof which was taken over by the Corporation. The sale made by the UPFC in favour of the fifth respondent was in exercise of the statutory powers vested in the Corporation by Section 29 of the State Financial Corporation Act, 1951. Under the aforesaid provisions of the Act default in re-payment of any loan by an industrial undertaking vests in the Financial Corporation the right to take over the management or possession or both of the industrial concern along with the right to transfer the property pledged, mortgaged, hypothecated or assigned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have refused an adjudication of the Writ Petition and, instead, ought to have required the aggrieved parties to seek their remedies in an appropriate manner and before the competent civil forum. - Decided in favour of appellants. - C.A. 7597 OF 2012 - - - Dated:- 19-10-2012 - SATHASIVAM, P GOGOI, RANJAN,JJ. JUDGMENT Leave granted. 2. Both the appeals are directed against the judgment and final order dated 05.12.2006 passed by the High Court of Uttaranchal in Crl. Misc. Writ Petition No. 196 of 2003 (M/B). 3. A recital of the facts stated by the appellant Uttar Pradesh Finance Corporation (UPFC) in the appeal filed by it would suffice for the purpose of the adjudication that is required to be made in the present appeals. 4. A term loan of ₹ 4.55 lacs was sanctioned by the UPFC to one M/s. Sangam Ice Cream (hereinafter shall be referred to as the borrower), a proprietorship concern owned by one, Smt. Nisha Devi Jaiswal. To secure the repayment of the aforesaid loan together with the interest due thereon, the borrower had created an equitable mortgage, by deposit of title deeds, of land measuring 192.34 sq. meter or 0.048 acres bearing Khasr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 contending that on 06.02.2003, while he and his family members were away, possession of the property in question was taken over by the Corporation. Restoration of possession was the principal relief prayed for in the aforesaid suit. Thereafter, stating that from the written statement filed in the suit by the Corporation it transpired that the property purchased by him (Vishnu Dutt Sharma) stood mortgaged in favour of the Corporation on account of a loan taken by the original owner thereof and that pursuant to the said Notice published in the newspaper Dainik Jagaran dated 20.10.2002, the property had been purchased by one Pradeep Kumar Sharma, a Writ Petition was filed impleading the UPFC and its Managing Director as the first and second respondents, Deepak Kumar Bisnoi and Sarita Rani as the third and fourth respondents and the purchaser Pradeep Kumar Sharma as the fifth respondent. 8. In the said Writ Petition, the prayer made was for quashing of the sale made in favour of the fifth respondent and for transfer of the property to the writ petitioner and further for restoration of possession of the same. The High Court while entertaining the Writ Petition passed an interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtised for sale pursuant whereto the fifth respondent had offered the highest amount. On acceptance of the said offer by the UPFC, the entire amount was paid and the sale was confirmed by the Corporation. No sale deed was however executed by the Corporation in favour of the fifth respondent. It also appears that before the property was put up for sale by the Corporation, the original owner, Smt. Nisha Devi Jaiswal had sold the same to the third and fourth respondents, who, in turn, had sold the same to the writ petitioner by sale deed dated 29.08.2001. The aforesaid sale by the original owners to the vendors of the writ petitioner and, thereafter, by said vendors to the petitioner himself was made when the property stood mortgaged in favour of the UPFC. It is in the above circumstances, that the writ petitioner had approached the High court seeking interference with the sale of the property made in favour of the fifth respondent pursuant to the advertisement dated 20.10.2002 issued by the UPFC and further for transfer of the property in favour of the writ petitioner besides restoration of possession thereof which was taken over by the Corporation. 13. The sale made by the UPFC i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in its order dated 05.12.2006 did not expressly say so, the affect of the several directions issued by it, in fact, amounts to an adjudication of the issues outlined above. 16. The essence of the dispute between the parties denuded the lis a public law character. Nor was any issue arising out of public law functions of the State or its authorities involved. In such a situation resort to the public law remedy should not have entertained by the High Court. (Vide Godavari Sugar Mills Ltd. vs. State of Maharashtra[(2011) 2 SCC 439 [para 8 (vi) ]]). Even if the vindication of the writ petitioner s rights under the sale deed dated 29.08.2001 is ignored and we are to proceed on the basis that the writ petitioner questioned the sale made by the Corporation, the writ petitioner would not be entitled to an adjudication of the rights of the parties inter se but at best to a judicial review of the administrative action of the Corporation with regard to the sale made (Vide Kisan Sahkari Chini Mills Ltd. and ors. vs. Vardan Linkers and others[2008) 12 SCC 500 - para 23] ) But as already noticed neither the exercise of the statutory power under the Act by the Corporation in the matter of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
