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2021 Supreme(J&K) 277
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
ALI MOHAMMAD MAGREY, SANJAY DHAR, JJ.
M/s Pride of Kashmir – Appellant
Versus
The Jammu and Kashmir Bank Limited & Ors. - Respondents
WP(C) No. 1842 of 2021, CM No. 6157 of 2021
Decided on : 05-10-2021
Advocate Appeared:
For the Appellant :Mr W.M. Shah, Advocate.
For the Respondent:Mr Z.A. Shah, Mr A. Hanan, Advocate.
Point of Law: If the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period.
Headnote:
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Writ of Mandamus – Bank - Loan - Recovery of amount - Petitioner is a borrower of loan and having defaulted installment, respondent-Bank has proceeded against the petitioner in terms of provisions of Act, 2002 for ensuring recovery of amount from petitioner and had reached the stage of issuance of possession notice.
Finding of the Court :
Court fails to understand as to how the writ petition for the reliefs claimed is maintainable qua seeking mandamus to be issued against the respondent-Bank for implement of the decision, if any, made by the Principal District Judge. The principal for grant of Mandamus by the High Court in a writ petition under Article 226 is well settled. The violation of a right is sine qua non for maintaining the writ petition for the relief claimed. Court do not find any merit in the instant writ petition for the relief(S) claimed.
Result: Writ petition dismissed
ORDER :
Per Magrey, J.
1. In the instant petition, the petitioner has prayed for the following reliefs;
“In the premises, it is therefore, prayed that writ of Mandamus be issued against the respondents commanding upon them to Implement the order dated 1/10/2019 passed by ld. District Judge Srinagar U/S 17-A SARFAESI Act and settle the matter.
2. Admittedly, the petitioner is a borrower of loan and having defaulted the installment, the respondent-Bank has proceeded against the petitioner in terms of the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act), for ensuring recovery of the amount from the petitioner, therefore, had reached the stage of issuance of possession notice.
3. During the pendency of the proceeding under the provisions of the Act, the petitioner, as stated, has filed an application under section 17-A of the Act, before the Principal District Judge, Srinagar, claiming settlement of accounts and the learned Principal District Judge, Srinagar, while noticing the claim made in the application, directed the applicant to approach the Authorized Officer of the Bank for any settlement. Learned counsel for the petitioner when asked as to how the writ petition is maintainable for the reliefs claimed, submits that the respondent-Bank is not making any settlement as directed the Principal District, Srinagar.
4. The Court fails to understand as to how the writ petition for the reliefs claimed is maintainable qua seeking mandamus to be issued against the respondent-Bank for implement of the decision, if any, made by the Principal District Judge, Srinagar. The principal for grant of Mandamus by the High Court in a writ petition under Article 226 is well settled. The violation of a right is sine qua non for maintaining the writ petition for the relief claimed. The scope under Article 226 of the Constitution of India is very limited as already held by the Division Bench of this Court in case titled Rafiq Ahmad Wani & Ors vs J&K Bank Ltd. & Ors, reported in 2020 (4) JKK 251 [HC]. This view is also supported by the Judgment of Hon’ble the Supreme Court of the country, while dealing with the scope of ‘grant of writs, in case titled ‘State of Kerela V. Smt. A. Lakshmikutty & Ors. reported in (1986) 4 Supreme Court Cases 632’, at Paragraph No.34, has observed as under:
“34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragraph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:
“It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.
The consultation of the Governor with the High Co
