IMPORTANT POINT
Maintainability of writ petition.

JUDGMENT

Ranjan Gogoi, J.-Leave granted.

2. Both the appeals are directed against the judgment and final order dated 05.12.2006 passed by the High Court of Uttaranchal in Crl. Misc. Writ Petition No. 196 of 2003 (M/B).

3. A recital of the facts stated by the appellant Uttar Pradesh Finance Corporation (UPFC) in the appeal filed by it would suffice for the purpose of the adjudication that is required to be made in the present appeals.

4. A term loan of Rs. 4.55 lacs was sanctioned by the UPFC to one M/s. Sangam Ice Cream (hereinafter shall be referred to as the borrower), a proprietorship concern owned by one, Smt. Nisha Devi Jaiswal. To secure the repayment of the aforesaid loan together with the interest due thereon, the borrower had created an equitable mortgage, by deposit of title deeds, of land measuring 192.34 sq. meter or 0.048 acres bearing Khasra No. 496 along with the constructions standing thereon located at Mauza Niranjanpur, Pargana Kendriya Doon Tehsil and District Dehradun.

5. After sanction of the aforesaid loan, the borrower availed a part thereof but defaulted in payment of the installments due. As such default became chronic and persistent, the UPFC invoking its power under Section 29 of the State Financial Corporation Act, issued notice dated 20.12.1994, calling upon the borrower to clear all the dues failing which recovery of proceedings including sale of mortgaged property was contemplated. As despite the said Notice the dues of the Corporation remained unpaid an advertisement was issued in the newspaper “Doon Darpan” on 22.09.1996 for sale of the mortgaged property. The Corporation, however, did not receive any suitable offer pursuant to the advertisement issued. The fresh second advertisement, nevertheless, came to be issued only in the edition of “Amar Ujala” on 20.10.2002. It appears that, in the meantime, the sole proprietor of the borrower firm, Smt. Nisha Devi Jaiswal, executed a sale deed in respect of the land in favour of two other persons, i.e. Deepak Kumar Bishnoi and Smt. Sarita Rani, who, in turn, sold the said property to one Vishnu Dutt Sharma by sale deed dated 29.08.2001.

6. Pursuant to the second advertisement dated 20.10.2002 published in the edition of Amal Ujala, one Pradeep Kumar Sharma submitted his offer of Rs. 4.50 lacs along with a bank draft of Rs. 50,000/- as earnest money. The UPFC issued another advertisement in the edition of “Dainik Jagaran” dated 01.11.2002 indicating a price offered by Pradeep Kumar Sharma for the property in question and calling upon the borrower / members of the public to submit their better offer, if any. Evidently, there was no response to the aforesaid advertisement dated 01.11.2002 published in the “Dainik Jagaran”. Therefore on 31.12.2002, the Corporation accorded its approval for the sale of the land in favour of Shri Pradeep Kumar Sharma and on 14.01.2003, a deposit of another sum of Rs. 1.75 lacs was made by the aforesaid Pradeep Kumar Sharma. On 27.02.2003, the balance amount of the offered price i.e. Rs.2.25 lacs was tendered to the Corporation.

7. While the matter was so situated, Vishnu Dutt Sharma who had purchased the property by the sale deed dated 29.08.2001 instituted a suit, i.e. O.S. 75/2003 contending that on 06.02.2003, while he and his family members were away, possession of the property in question was taken over by the Corporation. Restoration of possession was the principal relief prayed for in the aforesaid suit. Thereafter, stating that from the written statement filed in the suit by the Corporation it transpired that the property purchased by him (Vishnu Dutt Sharma) stood mortgaged in favour of the Corporation on account of a loan taken by the original owner thereof and that pursuant to the said Notice published in the newspaper “Dainik Jagaran” dated 20.10.2002, the property had been purchased by one Pradeep Kumar Sharma, a Writ Petition was filed impleading the UPFC and its Managing Director as the first and second resp