IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.4868 of 2009 Decided on : June 4, 2010 Rajeev Sood …Petitioner. Versus Jammu & Kashmir Bank and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. B.S. Chauhan, Advocate. For the Respondents : Mr. Balwant Kukreja, Advocate, for respondents NO.1 to 3. None for respondent No.4. Surjit Singh, J (Oral) Petitioner has challenged the action of respondents No.1 to 3, under Section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short Act), whereby possession of a double storeyed building, standing on Khasra No.61/8/1, situate in Mohal Banuri, Tehsil Palampur, District Kangra, has been taken over, on account of respondent No.4 having failed to discharge the liability, under a loan agreement. 2. It appears that respondent No.4 raised a loan from respondents No.1 to 3, who are a Bank and its functionaries, in the year 2005, and a house standing on Khasra No.61/8/1, owned by the wife of respondent No.4- borrower, was mortgaged, by way of deposit of title deed. Whether reporters of the local papers may be allowed to see the judgment? …2… 3. After the raising of the loan, as aforesaid, wife of respondent No.4 sold one floor of the house, i.e. first floor, in favour of the petitioner, for a sale consideration of Rs.9,00,000/-. Debt having not been serviced, respondents No.1 to 3 took resort to the provision of Section 13 of the Act and took over possession of the entire building, including the first floor, which petitioner claims to have purchased from the wife of respondent No.4, in February, 2006, vide Agreement Annexure P-1. Respondent filed an appeal before the Debt Recovery Tribunal at Chandigarh, under Section 17 of the Act and sought restoration of the possession of first floor of the building, alongwith his moveable property kept in that floor. Lateron he withdrew the appeal and filed the present writ petition. 4. It is alleged by the petitioner that the building standing on Khasra No.61/8/1 had not been mortgaged with respondents No.1 to 3 and, therefore, their action of taking over the possession of the building is illegal and without jurisdiction and not covered by the provisions of the Act. It is alleged that as per description given in the notice, issued under Section 13 of the Act, copy Annexure P-4, title of the mortgaged property had been acquired by the borrower, vide Sale Deed No.142 of 2.6.2006 and that as a matter of fact Sale Deed No.142 of 2.6.2006 is a Sale Deed by a different person in favour of some third person. Copy of …3… that Sale Deed has been placed on record, which is Annexure P-5. 5. Respondent No.4 has not put in appearance, despite service. Respondents No.1 to 3 have filed a common reply, in which it is stated that the petition is barred, under Order 23 of the Code of Civil Procedure. It is also stated that the present petition is not maintainable, as the remedy of appeal is available to the petitioner and that in fact he initially filed an appeal against the impugned action of respondents No.1 to 3, but lateron withdrew that appeal, for the reasons best known to him. On merits, it is stated that the title of the property, which was mortgaged, had been acquired by respondent No.4, by means of Deed No.285 of 1990 and that No.142 of 2.6.2006 had been written in Annexure P-4, by mistake, because that was the number of the certified copy of the Deed of 1990, which had been procured from the Sub Registrar of Documents. 6. I have heard the learned counsel for the parties and gone through the record. 7. Order 23 of the Code of Civil Procedure would not stand in the way of the petitioner, in seeking relief, under Article 226 of the Constitution of India, because Order 23 Rule 1 of the Code bars institution of a fresh suit when the previous suit is withdrawn without seeking permission from the Court to file a fresh suit on the same cause of action. Technically speaking, the provision may …4… not be applicable when the Writ jurisdiction of the High Court is sought to be invoked, after the withdrawal of the earlier suit. 8. As regards the second objection, I feel that remedy of appeal was available to the petitioner and, therefore, instead of withdrawing that appeal, which he had initially filed, and filing the present petition, he would have been better advised to continue with the appeal. 9. Learned counsel for the petitioner submits that the property, in question, had not been mortgaged and, therefore, provisions of the Act are not applicable, in view of the provision of clause (e) of Section 31 of the Act, which reads as follows: “31. Provisions of this Act not to apply in certain cases.- The provisions of this Act shall not apply to – (a) to (d) xxx xxx xxx xxx (e) Any conditional sale, hire-purchase or lease or any other contract in which no security interest has been created; (f) to (j) xxx xxx xxx xxx” 10. Learned counsel submits that there is no contract, indicating that any security interest had been created in favour of respondents No.1 to 3, in respect of the property, in question. Submission has been noticed only to be rejected. Respondents No.1 to 3 have placed on record Annexure R-2, letter for deposit of title deeds, per which title deed, in respect of residential house, standing on …5… Khasra No.61/8, measuring 380 Sqm had been deposited, as security for the discharge of liability incurred under the loan agreement. 11. Learned counsel for the petitioner further submits that the title deed purportedly deposited with Annexure R, having not been produced by respondents No.1 to 3 and instead the said respondents having procured a copy of the title deed from the Sub Registrar, presumption should be that no title deed had been deposited. Such a presumption cannot be drawn. The argument raised requires proof, for which evidence shall have to be led. In a petition, under Article 226 of the Constitution of India such an enquiry cannot be made. In view of the abovestated position, I am of the considered view that the petition is without merit. The same is, therefore, dismissed. June 4, 2010(sd) ( Surjit Singh ), J