GURBACHAN SINGH BHASIN Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The late husband of the petitioner is stated to have purchased House No. 102/2, Basti Bhurekhan, Preet Nagar, Sodal Road, Tehsil and District Jalandhar in pursuance to a conveyance deed dated 31.3.1965. This property is stated to have been divided between late husband of the petitioner and Hansa Singh and others whereby the partitioned House No. 102/2 came to the share of the husband of the petitioner during settlement in partition proceedings and the property was constructed thereupon. The husband of the petitioner passed away on 28.8.1999. It is the case of the petitioner that her son Gurvinder Singh had been disinherited by her late husband on account of strained relations with the petitioner and her husband. Neither the petitioner nor her husband ever stood guarantee for any loan. It appears that Gurvinder Kaur wife of Gurvinder Singh, her son, obtained a loan of Rs. 50,000/- from Punjab and Sind Bank under Prime Minister Rozgar Yojna, which has not been paid, for which the Bank filed suit for recovery. The petitioner claims to have filed a civil suit for declaration that she along with her another son Baldev Singh are exclusive owners and in possession of property No. 102/2 as per family partition agreement dated 15.3.1984, which is pending before the Civil Court at Jalandhar and Gurvinder Singh has been impleaded as 5th defendant.

(2.) The Bank is stated to have issued a notice dated 29.3.2006 threatening auction of the property under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'SARFAESI Act') which was the security for the loan advance. The petitioner filed the present writ petition under Article 226 of the Constitution of India for quashing of the notice and interim protection was granted to the petitioner. The petitioner also sought to challenge the provisions of the SARFAESI Act and rules framed thereunder as ultra vires the Constitution of India.

(3.) The petition has been contested by respondent No. 2- State Bank of Hyderabad and it is categorically stated that the property had been mortgaged with the Bank. It is further stated that House No. 102 was jointly allotted to the late husband of the petitioner and Sh. Hansa Singh and Sh. Hansa Singh sold his share to Gurvinder Singh, son of the petitioner and Gurvinder Kaur w/o Gurvinder Singh and thus, mortgage was created by deposit of sale deed of the house property, a copy of which has been enclosed with Annexure R-1. That is how the proceedings under the SARFAESI Act were filed. There is no replication filed to the aforesaid written statement denying the averments made in the written statement of Bank.