HDFC BANK LIMITED Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner Bank has preferred the instant writ petition under Article 226/227 of the Constitution seeking writ of mandamus directing respondent No.2 to remove the lien entered vide rapat No. 251 dtd. 17/3/2025 (Annexure P-8) in the revenue record at the behest of respondent No.3 over the property which is a secured asset in the hands of the petitioner Bank thereby scuttling the rights of the secured creditor which are to be paid prior to that of all other debt/charges secured by mortgage, with a further prayer seeking writ in the nature of certiorari quashing the lien entered vide rapat No. 251 dtd. 17/3/2025 (Annexure P-8) in jamabandi of the year 2021-2022, as the petitioner Bank is having priority of charge being secured creditor and also seeking issuance of writ of mandamus forbearing respondent No.3 from interfering in any manner with the Petitioner 's rights to proceed under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) to enforce its security interest in the secured asset.

(2.) In nutshell, the facts of the case are that the respondent No.4 had availed loan facility in the shape of Cash Credit Limit amounting to Rs.12.00 crores with PSR facility of Rs.16.32 lac and Term Loan facility of Rs.1.80 crores, thereby availing total loan facility amounting to Rs.13,96,32,000.00 by securing the properties by way of mortgage in favour of petitioner Bank. The properties were equitably mortgaged on 18/4/2014 in favour of the petitioner Bank and even the properties were duly registered in Central Registry created under the SARFAESI Act in favour of the petitioner Bank since 3/5/2014, the copy of CERSAI report in this regard is Annexure P-1. The loan account of the borrower respondent No.4 turned NPA on 31/3/2018 on account of the default committed by the them, resulting in initiation of proceedings under the SARFAESI Act including the notices under Sec. 13(2) dtd. 24/8/2018 (Annexure P-2) demanding the amount, under Sec. 13(4) dtd. 30/10/2018(Annexure P-3) followed by order dtd. 4/12/2018 under Sec. 14 of the SARFAESI Act being passed by the Additional District Magistrate, Jagraon (Annexure P-4), modified vide order dtd. 13/3/2019 (Annexure P-5). In pursuance thereof the physical GYAN CHAND possession of the properties as mentioned in the para 2(i) and 2(ii) of the petition were taken over by the petitioner Bank on 5/4/2019 (Annexure P-6). Thereafter Original Application, OA No.2449/2018, was filed by the petitioner Bank before the DRT-III, Chandigarh on the basis whereof final orders/judgment dtd. 27/10/2022 (Annexure P-7) was passed which is pending execution before the Recovery Officer in Execution RC No.647/2022. Since no further appeal against the order passed in OA was preferred as such the same had attained finality.

(3.) It is averred that the petitioner Bank was in the process of liquidating the secured assets by putting them on auction, when it came to its notice that the secured assets had been attached at the instance of respondent No.3 vide rapat No. 251 dtd. 17/3/2025 (Annexure P-8). It is further averred that the charge created in favour of the petitioner-Bank qua the secured debt has been duly registered in the Central Registry way back on 18/4/2014 (Annexure P-1) on the basis of equitable mortgage, whereas the lien so created by respondent No.3 is much later, i.e. 17/3/2025. Reference is made to Sec. 26 (E) of the SARFAESI Act and Sec. 31 of Recovery of Debt and Bankruptcy Act, 1993 (in short RDB, Act) which makes the rights of secured creditors to realize the secured debts having priority over all Government dues and hence prayer for acceptance of the petition and issuance of the requisite writs.