9911796707
TMI Blog2022 (7) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... t by due process of law in the facts and circumstances of this case. As observed earlier, it is for the District Magistrate to decide the same, and therefore, the Bank ought to have placed the order passed by the Division Bench before the District Magistrate before he could exercise jurisdiction under Section 14(1) of the SARFAESI Act. There are no hesitation to hold that not placing the order passed by the Division Bench before the District Magistrate is definitely prejudicial to the interest of the appellant as the District Magistrate had no occasion to make any observation as regards the effect of such order. It is not clear as to why the respondent-Bank failed to place the order passed by the Hon ble Division Bench before the District M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Nos. 6 7: Mr. R. C. Prusti, Advocate and Mr. Sanjib Das, Advocate T. S. Sivagnanam, J.: This intra court appeal filed by the writ petitioner is directed against the order dated 21st February, 2019 passed in W.P. No.7039 (W) of 2018. In the said writ petition, the appellant, who claimed to be in possession of the property, which is subject-matter of action under the provisions of the SARFAESI Act, 2002 at the instance of the respondent- Bank, challenged the order passed by the District Magistrate, Paschim Medinipur, dated 06.06.2017, in exercise of his power under Section 14(1) of the SARFAESI Act, 2002. The appellant is not the borrower but the 8th respondent is the borrower, who has defaulted in repayment and the respondent-Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he District Magistrate and it should have disclosed the pendency of the Title Suit before the learned Single Judge and the order passed therein. Though such finding was recorded, the learned Writ Court was of the opinion that non-disclosure of the civil proceedings in the facts and circumstances of the case is not fatal to the application under Section 14 of the Act. Further, the Court observes that there is no material placed on record to suggest that, had the District Magistrate been apprised of the pendency of the suit or the order passed in the suit and in the appeal, he would not have passed the order dated June 6, 2017 and with the such observations, the writ petition was dismissed. Aggrieved by the said, the appellant is before us by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy of the civil proceeding, and the various orders passed by the civil court as well as the Division Bench of this Court. It is not for this Court to examine as to what the District Magistrate would have done, had all the orders been placed before it. It is up to him to take a decision, which undoubtedly should be in accordance with law. The appellant had initially obtained an order of interim injunction in O.S. No. 491 of 2010, by which the prayer for interim injunction was allowed, and the defendants which includes the respondent-Bank was directed to maintain status quo as regards themselves, and the plaintiff/appellant in the suit property on the date of the order as well as with regard to payment of monthly occupation charges of the ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing so, the Hon ble Division Bench has observed that the appellant/plaintiff shall not be evicted from the premises in question except in due process of law. The question would be as to what is meant by due process of law in the facts and circumstances of this case. As observed earlier, it is for the District Magistrate to decide the same, and therefore, the Bank ought to have placed the order passed by the Division Bench before the District Magistrate before he could exercise jurisdiction under Section 14(1) of the SARFAESI Act. Therefore, we have no hesitation to hold that not placing the order passed by the Division Bench before the District Magistrate is definitely prejudicial to the interest of the appellant as the District Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is remanded to the District Magistrate, Paschim Medinipur and with the direction to the respondent-Bank to place all the materials including the pleadings and the orders passed by the civil court as well as the order passed by the Hon ble Division Bench and thereafter the District Magistrate shall afford an opportunity of hearing to the respondent-Bank as well as the appellant, and take a fresh decision on merits and in accordance with the law. We further make it clear that this order shall not prejudice the rights of the parties in the pending proceeding before the Debt Recovery Tribunal, which have been initiated by the appellant and it will be open to the respondent-Bank to raise all defences which are available to them on facts as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
