IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14268 of 2011 Sawalia Singh, S/O Late Durga Singh R/O Rajpur Colony, Road No.- 3 House No.- 113, P.O.- Hajipur, P.S.- Industrial Area, Hajipur, District- Vaishali (Bihar). …Petitioner. Versus 1. The State of Bihar through District Magistrate, Vaishali, Hajipur, District- Vaishali (Bihar) 2. Sri Krishan Kumar Sinha, Sub-Divisional Officer (Sadar), Hajipur, Town and Post- Hajipur, District- Vaishali 3. The Presiding Officer, Debts Recovery Tribunal, Bihar, 34-Bank Road, Opposite New Police Line, Lodipur, Patna- 800001 4. Sri Rajesh Singh, S/O Late Ram Kumar Singh, Director, M/S Farms Solutions Trading Pvt. Ltd and Others, R/O Village- Maniyarpur, District .- Vaishali. ...Respondents. ----------- For the petitioner : Dr. Binay Kumar Singh, Advocate. Mr. R.s. Vidyarthi, Advocate. For respondent nos.1 & 2 : Mr. Prabhat Kumar, A.C. to G.A.-2 For respondent no.4 : Mr. Arbind Kumar Jha, Advocate. ---------- 04/ 24.11.2011 Heard learned counsel for the petitioner and learned counsel for the State of Bihar and its authorities as well as learned counsel for respondent no.4. 2. A counter affidavit has been filed on behalf of respondent no.4 and a supplementary affidavit has also been filed on behalf of the petitioner. 3. This writ petition has been filed by the petitioner for the following reliefs:- (i) For issuance of a writ in the nature of mandamus with a direction upon respondent no.1 and 2 to comply with the provision of section 14 under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, the Act) forthwith for delivering - 2 - the possession of the immovable properties auctioned in favour of the petitioner through an open bid held on 09.02.11 by State Bank of India, Stressed Assets Management Branch (hereinafter SAMB), Patna- the Secured Creditor. (ii) For a direction upon respondent no.3 to decide the SARFAESI Appeal no.56 of 2011 preferred by respondent no.4 expeditiously, which has been dragging on beyond ninety days specifically so directed by an order dated 25.03.2011 passed in CWJC No.2608 of 2011 by this Hon’ble Court. (iii) For holding that u/s 14 of the Act, the District Magistrate, is obliged to take possession of auctioned assets and forward the same to the auction purchaser and that he is bound to extend necessary assistance called for. (iv) For holding that the issuance of Memo No.673 dated 30.07.2011 by respondent no.2 despite a categorical and unambiguous direction dated 20.07.2011 upon him by respondent no.1 to depute required force for taking possession of the immoveable properties in question is in the teeth of statutory provision as contained in section 14 of the Act and is grossly arbitrary, palpably aimed at keeping the matter under litigation in order to help respondent no.4 and also amounts to supercession of the direction of his higher authority. (iv) For holding that the writ petitioner, who emerged successful bidder at the auction held on 09.02.11 and was issued sale certificates on 25.02.11 and in whose name the property was subsequently mutated and in spite of an application dated 19.04.11 by the secured creditor to respondent no.1 for deputing two units of police force to take possession of the two properties, has been running from pillar to post and finds himself sandwitched between devil and deep sea for no fault of his. (v) For holding that in the light of the judgment passed by Hon’ble Apex Court in NOIDA Entrepreneurs Association versus Noida [(2011) 6 SCC 508 para-41,] that the power vested by the State in a public authority is to - 3 - be exercised adhering to the statutory provisions and facts situation of the case, and in view thereof, the actions of respondent no.3 are ex-facie, arbitrary, shocking, illegal and outrageous. (vi) For holding that respondent no.2 despite an unambiguous order dated 21.04.2011 by respondent no.3 has exceeded his jurisdiction in issuing the Memo No.673 dated 30.07.2011 for a clear cut direction from DRT and has brazenly tried to grant undue favour to respondent no.4 for reasons best known to him. (viii) For any other reliefs for which the petitioner may be entitled in the facts and circumstances of this case and pending disposal of this writ, the petitioner, in the interim, prays for a direction upon respondent no.2 to effectualise the direction dated 20.07.11 of respondent no.1 which is taking peaceful possession of the properties in question in favour of the writ petitioner. 4. From the arguments of learned counsel for the parties as well as from the materials on record it is quite apparent that an appeal bearing no.56 of 2011 filed by respondent no.4 under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for the sake of brevity) is pending before the Debts Recovery Tribunal and an interlocutory application has also been filed therein. 5. In the aforesaid facts and circumstances of this case without going into the merits or otherwise of the claims or rival claims of the parties, this Court deems it proper that the said appeal should be decided first and only thereafter the entire matter can be legally considered and decided in its true perspective. - 4 - 6. It is admitted that the said appeal is pending since March, 2011 and more than 120 days as prescribed in the Act has lapsed, but in spite of that the appeal is yet to be decided although it should have been decided by the Tribunal within the period prescribed. 7. In the said circumstances, this writ petition is disposed of directing the Debts Recovery Tribunal, Bihar to decide the said appeal fully and finally after looking into the materials on record and hearing the parties within thirty days from the date of receipt/production of a copy of this order. Learned counsel for the petitioner and learned counsel for respondent no.4 assures this Court that they will cooperate with the Tribunal for expeditious decision in the appeal without taking any adjournment. If any of the parties do not cooperate in the early disposal of the appeal, the appellate authority shall decide the case ex parte. 8. Till the disposal of the said appeal, no coercive action shall be taken against the petitioner by respondent no.2. Let a copy of this order be handed over to learned counsel for the petitioner. Sunil (S. N. Hussain, J.