IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14528 of 2008 Gopal Prasad Dokania, son of Late Bishwanath Kokania, Resident of Mohalla, Bhagwandas lan, Marwari Tola, P.O. Bhagalpur City, P.S. Kotwali, Dist. Bhagalpur. ---------- Petitioner Versus 1. The Punjab National Bank, having its Head Office at 7, Bhikaji Cama Place, New Delhi, through its Chairman-cum-Managing Director. 2. The Zonal Manager, Punjab National Bank, Zonal Office, Pankaj Market, Muzaffarpur. 3. The Regional Manager, Punjab National Bank, Regional Office, Commercial Chowk, Laherisarai, Darbhanga. 4. The Senior Branch Manager, Punjab National Bank, Sabji Mandi, Sujagnj, Bhagalpur. -------- Respondents. ------------- For the Petitioner : Mr. Gautam Kejriwal, Adv. Mrs. Sushila Agarwal, Adv. Mr. Akash Chaturvedi, Adv. For the Respondent Bank : Mr. Sunil Kumar Singh, Adv. ------------- 02 01.10.2008 The petitioner claims to have a right in an alleged joint family property along with his brothers and the widow mother. He alleges that without his knowledge and without his consent the entire property was mortgaged to the respondent-Punjab National Bank by other members of the family including his father. This was not permissible. It is submitted that he recently came to know about the mortgage and the action that is being sought to be taken by respondent- Punjab National Bank in terms of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest - 2 - Act (SRFAESI) 2002. Even though no notice was issued to him, he filed his objection before the Bank pointing out that he had a share in the property and not being either guarantor nor having consented to the mortgaged property, it could not be proceeded unless shares were determined and demarcated. The Bank apparently has not replied to the petitioner but informed the mother of the petitioner who was a co- mortgagee that the stand was not accepted as the entire property stood mortgaged. Feeling threaten by the actions of the respondent-Bank the present writ petition has been filed with a prayer for restraining the respondent Bank from either taking possession of the entire property and/or attaching the entire property and/or selling the entire property with the interest of the petitioner, being not determined. Reliance has been placed by the petitioner in the case of Janki Vashudeo Bhojwani and another Versus Indusind Bank Ltd. & Others since reported in 2004(3) Supreme Court Cases 584. In my view, as petitioner has already filed a civil suit being Title (Partition) Suit No. 199 of 2008, pending before learned Sub Judge, Bhagalpur claiming partition in which Bank as been made a party, this court cannot go into and decide the said question. The first question that is to be determined is whether the petitioner has any right in the property, the second question would be that if he has any right in the property what is the extend of his right and the third would be to what extent would the property then be encumbered by the mortgagee. These are questions of facts which can only be determined in a judicial proceeding. - 3 - Petitioner states that though he has filed an injunction application in the trial court where the partition is pending, the Bank has appeared but in view of section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SRFAESI) 2002, the Court is not competent to grant injunction and if injunction is not granted then the property would be sold without even determining petitioner’s right therein, and if it is ultimately found that the petitioner had a right in the property he would have suffered irreparable injury inasmuch as the right to get back the property and/or to compensation as envisaged under section 19 of the SRFAESI Act is only to the borrower. Having considered the matter, in my view, it cannot be said straightway that petitioner has no right in the property. If he has some right and this being a residential house of the joint family and he not being either the beneficiary of the loan or surety or guarantor then his right in the property cannot be sacrificed. Thus, I find that there is a prima facie case in favour of the petitioner as also balance of convenience and that being so I direct the trial court to take expeditious step to secure presence of all the parties. Petitioner and the Bank would cooperate. For a period of six months from today Bank would not proceed with any action in terms of section 13 of the SRFAESI Act, in which time the trial should commence, all parties having appeared and exchange pleadings, issues framed. In case of any of the private parties to the suit not appearing or not cooperating then the Bank would free to proceed again under SRFAESI Act in respect of the entire property - 4 - without any objection from the petitioner. If the trial so commence within six months then all parties to the said suit would cooperate to see that the trial is concluded within next six months and if not so concluded and the delay is not attributable to the Bank then again the Bank would be at liberty to proceed under Section 13 of the SRFAESI Act without there being any objection from any quarter. It is the best interest of the parties to seek cooperation from all the parties to the suit and for the trial Court to see that expeditious steps are taken in the matter. With these directions and objections the writ petitions stands disposed of. Trivedi/ (Navaniti Prasad Singh,J.)