IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12133 of 2007 Nilotpal Thakur, S/o Late D.K.Thakur, R/o „Maya House‟ T.N.Singh Road, P.S.-Kotwali, District- Bhagalpur. ………. Petitioner. Versus 1. Regional Officer, Canara Bank, Regional Office, Muzaffarpur 2. Authorized Officer, Canara Bank, Regional Office, Muzaffarpur. 3. Senior Branch Manager, Canara Bank, Bhagalpur. 4. Swarn Lata Sinha, W/o Dr. Arun Kumar Sinha, R/M Masakchak, P.S.-Adamapur, District-Bhagalpur. …. Respondents. For the petitioner : Dr. Manoj Kumar, Advocate. For the Respondents : Mr. Abhay Kumar Singh, Advocate. Mr. Rakesh Behari Singh, Advocate. Mr. Ratnesh Nandan Singh, Advocate. ----------- 10. 06.12.2010 1. Heard learned counsel for the petitioner, learned counsel for Canara Bank and its authorities as well as learned counsel for private respondent no. 4. 2. Before considering the merit of the case, it is necessary to decide the contempt matter due to alleged violation of the order of this court dated 16.12.2008 by which it was directed “that no action be taken by the respondent-Canara Bank through its Regional Office, Muzaffarpur in respect of petitioner‟s property at Bhagalpur in terms of Section 13(4) of the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(hereinafter referred to as SARFAESI Act for the sake of brevity) and in case any action is taken, no third party‟s right would be created nor the petitioner dispossessed in any manner”. According to the petitioner this order has been violated by the Bank by issuing sale notice dated 05.01.2009 and selling the lands vide bid dated 18.02.2009 to Sri Pradeep Kumar and Smt. Rekha Devi and also confirming the said sale. 2 3. Learned counsel for the respondents submits that by the said order dated 16.12.2008 this court had stayed any auction with respect to the petitioner‟s properties and accordingly, respondents had not taken any step with regard to the petitioner‟s properties rather sale notice dated 05.01.2009 and bid dated 18.02.2009 were issued and held with respect to the properties of petitioner‟s brother namely Arunotpal Thakur and hence, respondents have not violated any order of this court. 4. From perusal of Annexure-9 annexed to I.A.No. 6815 of 2008, it is quite apparent that there were some lands of petitioner‟s brother Arunotpal Thakur regarding which also steps were separately taken by the bank under the provisions of the SARFAESI Act and no order had been passed by this court with regard to the lands of petitioner‟s brother Arunotpal Thakur, hence, no contempt appears to have been made as none of the petitioner‟s properties had been put to notice or sale. 5. So far as the merit of this writ petition is concerned, it has been filed by the petitioner namely Nilotpal Thakur challenging notice under section 13(2) and 13(4) of the Act and also for quashing Auction Notice dated 9th July, 2007 with respect to the properties in question. 6. It is an admitted fact that the petitioner Nilotpal Thakur and his brother Arunotpal Thakur had exclusive lands separately. Learned counsel for the petitioner submits that the petitioner was looking after the properties of his brother also as his attorney and had sold his own lands as well as the lands of his 3 brother vide registered sale deed dated 25.08.2006 to Respondent no. 4 for valid consideration and only thereafter the impugned notices were issued on 19.09.2006 and 20.02.2007 and hence this writ petition has been filed on behalf of the petitioner immediately thereafter on 17.09.2007. 7. From the record of the case, it is quite apparent that proceedings were initiated against the lands of the petitioner as well as against the lands of his brother Arunotpal Thakur, but neither the said Arunotpal Thakur or the purchaser of his land raised any objection with regard to notices issued against him under the provision of Section 13(2) and 13(4) of the Act before any authority nor even the petitioner raised any such dispute or filed any petition with respect to the lands of Arunotpal Thakur as his attorney. It is also apparent that sale notice was published by the Bank on 05.01.2009 with respect to the land of Arunotpal Thakur whereafter sale took place on 18.02.2009 in which Sri Pradeep Kumar and Smt. Rekha Devi were successful bidders offering Rs. 4.5 lacs and they also deposited 25% of the consideration and sale was confirmed in their favour. In this regard, there were some misstatements in the counter affidavit of the respondents, but it was clarified by the respondent authorities in their supplementary counter affidavit at paragraph-6 thereof. Hence, it is for the aforesaid Arunotpal Thakur or his purchaser to take steps in that regard and if any application is filed that will have to be considered on its own merit in accordance with law but in this case no observation can be made with respect to the proceeding against the land of Arunotpal Thakur. 4 8. So far as the petitioner, Nilotpal Thakur is concerned, he has filed this writ petition in his independent capacity with respect to his land and he has not filed this writ petition as an agent or attorney of his brother Arunotpal Thakur. He has challenged the impugned notices issued by the authorities concerned under the provisions of Section 13 of the Act. Section 17 of the said Act clearly provides that any person including the borrower, aggrieved by any of the measures referred to in Sub Section 4 of Section 13 taken by the secured creditor, may make an application along with the prescribed fee to the Debt Recovery Tribunal having jurisdiction in the matter. In the said circumstances, the petitioner clearly had remedy available to him which he should have utilized. 9. Since, this writ petition was filed in the year 2007 itself, it is disposed of with a liberty to the petitioner or his successor in interest to file an appeal before the relevant authority in accordance with the provisions of the Act. However, if such an appeal is filed before the appropriate authority within 15 days from today along with a copy of this order and an interlocutory application for condoning the delay, the appellate authority shall consider the delay caused due to the pendency of this writ petition before this court and shall decide the appeal on merits in accordance with law expeditiously. It may be noted that if such an appeal is filed it shall be limited to the petitioner‟s lands only. Sujit (S.N.Hussain,J.)