Court No. - 39

Case :- WRIT - C No. - 27421 of 2020

Petitioner :- Master Kapil Dwivedi

Respondent :- Authorised Officer And Another

Counsel for Petitioner :- Deependra Yadav

Counsel for Respondent :- Gyan Prakash Shrivastava

Hon'ble Naheed Ara Moonis,J.

Hon'ble Dinesh Pathak,J.

Heard the learned counsel for the petitioner and

the learned counsel appearing on behalf of

respondent nos. 1 and 2.

Against the proceeding undertaken under the

SARFAESI Act 2002 the present writ petition has

been filed with the following relief;

"1. Issue a writ, order or direction in the nature of writ of

certiorari to quash the auction notice dated 14.10.2020

issued by respondent no. 2/Authorized Officer, Baroda

Uttar Pradesh Gramin Bank (Recovery Department).

2. Issue a writ order or direction in the nature of writ of

mandamus and directed the respondent nos. 1 and 2 not

to interfere in peaceful possession of petitioner's House

No. EWS 371, Ambedkar Nagar, Gujaini, district Kanpur

Nagar.

3. Issue any other writ, order or direction which this

Hon'ble Court may deem fit and proper under the

circumstances of the case, so as to secure the ends of

justice or else, the petitioner shall suffer irreparably.

4. To award the cost of this petition to the petitioner."

Learned counsel for the Bank has made a

preliminary objection that against the proceeding

undertaken under Section 13 (2) the petitioner has

failed to reply the demand notice nor made any

payment. The petitioner has alternative remedy to

approach the Debt Recovery Tribunal under

Section 17 of the Act.

On the perusal of the notice dated 26.7.2019 it

transpires that the proceeding has been initiated

pursuant to the steps taken under Section 13 (2)

issuing demand notice against the petitioner and

thereafter the bank has also proceeded under

Section 13 (4) of the Act.This fact has not been

disputed by the learned counsel for the petitioner.

We have considered the submissions of both the

counsel for the parties.

The Hon'ble Supreme Court in the case of ICICI

Bank Ltd. v. Umakanta Mohapatra, Civil Appeal

Nos. 10243-10250 of 2018, decided on

05.10.2018, has held as under:

"Delay condoned.

Leave granted.

Despite several judgments of this Court, including a

judgment by Hon'ble Mr. Justice Navin Sinha, as recently as

on 30.01.2018, in Authorized Officer, State Bank of

Travancore and Another VS Mathew KC., (2018) 3 SCC 85,

the High Courts continue to entertain matters which arise

under Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (SARFAESI),

and keep granting interim orders in favour of persons who

are Non-Performing Assets (NPAs).

The writ petition itself was not maintainable, as a result of

which, in view of our recent judgment, which has followed

earlier judgments of this Court, held as follows:-

"18. We cannot help but disapprove the approach of the

High Court for reasons already noticed in Dwarikesh Sugar

Industries Ltd. Vs Prem Heavy Engineering Works (P) Ltd

and another, (1997) 6 SCC 450, observing:-

"32. When a position, in law, is well settled as a result of

judicial pronouncement of this Court, it would amount to

judicial impropriety to say the least, for the subordinate

courts including the High Courts to ignore the settled

decisions and then to pass a judicial order which is clearly

contrary to the settled legal position. Such judicial

adventurism cannot be permitted and we strongly

deprecate the tendency of the subordinate courts in not

applying the settled principles and in passing whimsical

orders which necessarily has the effect of granting

wrongful and unwarranted relief to one of the parties. It is

time that this tendency stops."The writ petition, in this

case, being not maintainable, obviously, all orders passed

must perish, including the impugned order, which is set

aside.

The appeals are all