JUDGMENT

G.S. Sandhawalia, J. - The petitioner, in the present petition filed under Articles 226 and 227 of the Constitution of India challenges the order dated 17.02.2023 (Annexure P-3) passed by Debt Recovery Tribunal-II, Chandigarh wherein MA/33/2023 dated 14.02.2023 (Annexure P-2) was dismissed. The relief claimed in the said application was for restoring the physical possession of the secured asset of the applicant in view of the earlier order passed in its favour by the Tribunal on 23.01.2023 (Annexure P-1). The Tribunal, in a very cursory manner, dismissed the application by holding it to be misconceived and not maintainable and held that it had become functus officio after passing of the earlier order.

2. In our considered opinion, the above said order suffers from a patent lack of exercise of jurisdiction which was vested with the Tribunal which should have been exercised at the first instance itself and having failed to do so, the Tribunal had an opportunity to rectify the error but in a summary manner has dismissed the application which, in our considered opinion, has resulted in denying the fruits of the litigation to a successful litigant. It is in such circumstances, we are constrained to exercise our extra ordinary jurisdiction. The reliance by the counsel for the respondent-Bank upon Varimadugu Obi Reddy v. B. Sreenivasulu and others, 2023 (1) RCR (Civil) 34 would, in our considered opinion, not stand in the way to grant the relief.

3. It is to be noticed that initially the petitioner had filed a securitization application i.e. S.A. No.10 of 2023 under Section 17 of the Act, in which it challenged the proceedings including the physical possession which had been obtained through the District Magistrate. The Tribunal came to the conclusion that service upon the applicant had not been effected and accordingly the personal notice had not been served upon Gursewak Singh, the proprietor of the petitioner-Mill. The relevant port of the order reads thus:-

"8. From the documents on file and arguments advanced before this Tribunal, this Tribunal is satisfied that there is non-compliance of Rule 3 of the one Rules of 2022 in respect of affixation on the property in question. Even, if the publication in the two newspapers is deemed to be legal, this flaw remains incurable and thus, all cannot be said to be well wit the securitisation proceedings initiated by the respondent bank. The argument advanced by Sh. Rohit Sapra, Advocate that even the publication in the newspapers was not made at the latest address of the applicant at village Rauni-Khurd, cannot be brushed aside. In these circumstances, the securitisation proceedings have failed to take off in accordance with law which warrants allowing of the present application. Consequently, the SA is allowed with costs. Needless to say that the respondent bank is at liberty to issue fresh notice under Section 13(2) of the Act. It hardly needs to be stated here that the notice under Section 13(2) of the Act not being served legally, all subsequent proceedings shall not hold good.

4. The relief which was claimed in the said S.A. No.10 of 2023 reads as under:-

i) that the entire action under Section 13 of the Act culminating into issuance of 15 days sale notice 06.01.2023 be declared as illegal, null and void ab-initio.

ii) that respondent Bank be directed to pay a sum of Rs. 50 lacs to the applicant towards compensation and cost for its wrongful act.

iii) that the applicant be awarded the entire cost of the SA and that of the proceedings.

iv) Any other relief to which the applicant may be found entitled to in law or