CWP No. 2756 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 2756 of 2011 Date of decision July 6 , 2011 Jasmer Singh ....... Petitioner Versus Authorized Officer, Union Bank of India, Regional Office, Chandigarh and another ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Umesh Narang, Advocate for the petitioner. Mr. Yogesh Goyal, Advocate for the respondents. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. The petitioner is before this Court in a writ petition contending that the Bank was taking action for enforcement of a mortgage against the petitioner as though he was a guarantor for the loan granted to another person by name M/s Hari Om Tyres. The petitioner was relying upon a letter issued by the General Manager of the Bank to the Patwari, Barnala stating that the property mortgaged through a simple mortgage deed was being released and directing the Patwari to release the property. The Bank had its own explanation to give to this to contend that this release was not meant to be in respect of the petitioner's property. 2. It is an admitted case that the petitioner had CWP No. 2756 of 2011 2 originally filed a civil suit and that the petitioner himself had doubts about the maintainability of such an action. In contemplation of his intention to withdraw the civil suit, the writ petition had been filed. It appears that the suit was subsequently withdrawn. Even when the writ petition was before this Court the petitioner had also preferred an appeal to the Debt Recovery Tribunal under Section 17 against an order for sale and possession of the property purported to be taken under the SARFAESI Act, 2002. The counsel for the petitioner states that he has now instructions from his client to withdraw the appeal before the DRT and he is keen to prosecute the writ petition. 3. The issue whether any fraud had been practised on the petitioner for securing guarantee is an issue of fact particularly when there is a registered mortgage executed by the petitioner in favour of the Bank and not merely a creation of a mortgage by deposit of title deed, when the signatures of the petitioners could have been obtained on papers. The issue whether a letter given by the Bank to the Patwari would bind the Bank to allow the petitioner to plead a discharge and the other issue whether the mortgage could be treated as discharged by such a letter in accordance with law would be matters that would require to be considered again for adjudication by a Court of fact. There is prima facie no bar against a guarantor from enforcing its security under the SARFAESI Act unless the issue relating to the validity of the mortgage and the contention of the petitioner for discharge of the loan are established by appropriate evidence. I do not think the remedy before this Court in a writ jurisdiction will be appropriate. 4. If the petitioner seeks for revival of his appeal for prosecution before the DRT or any attempt by the petitioner to establish the mortgage is not enforceable, the Bank will join issues on the tenability of such a contention without taking any objection about the fact that the writ CWP No. 2756 of 2011 3 petition was filed and that it has come to be disposed of before this Court. 5. The writ petition is therefore disposed of with an observation that the petitioner will have an independent remedy in an appropriate forum in accordance with law and the Bank will be entitled to take up all the defences other than the defence that this disposal of the writ petition will constitute any bar for the petitioner to pursue his remedy. The petitioner will be at liberty to approach the alternative forum for any interim order. (K. KANNAN) JUDGE July 6, 2011 archana