Jammu And Kashmir Bank Ltd vs Manzoor Ahmad Qasba

Ali Mohammad Magrey, J

The Respondent herein, feeling aggrieved of the action initiated by the Appellant-Bank in terms of the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act of 2002’), filed an application/ Petition under Section 17(A) of the Act of 2002 before the learned Principal District Judge, Srinagar which was the forum available therefor as per law at the relevant point of time. The said application/ Petition, in terms of Order dated 31st of December, 2008, was dismissed by the learned Principal District Judge as being premature with a further observation to the Appellant-Bank to proceed in the matter, if so advised, having due regard to the observations made in the Order and in accordance with the relevant provisions of the Act of 2002. This Order of the learned Principal District Judge is challenged in this appeal by the Appellant-Bank, primarily, on the ground that once the learned Principal District Judge, on consideration of the matter, found the application/ Petition of the Respondent herein not maintainable as being premature, then, in such eventuality, it could not have made observations or recorded findings which directly affected the mandate of the Scheme of law as provided under the Act of 2002 for ensuring recovery of the unpaid loan amount.

Mr Z. A. Shah, the learned Senior Counsel, appearing on behalf of the Appellant-Bank, submitted that the observations made and findings recorded by the learned Principal District Judge are contrary to the very mandate of the Scheme of law governing the subject. It is pleaded that the mechanism for proceeding ahead with the case of the Respondent herein is squarely covered in the Act of 2002, however, the learned Principal District Judge, while directing the Appellant-Bank to proceed ahead in accordance with the observations made in the Order aforesaid, has exceeded its jurisdiction.

Having heard the learned Senior Counsel for the Appellant and after going through the pleadings on record, we feel that once the learned Principal District Judge was of the opinion that the application/ Petition filed by the Respondent herein was premature, then it could not have made observations or recorded findings contrary to the said conclusion. The learned Principal District Judge has rightly declared the application/ Petition as premature, but has unnecessarily made the aforesaid observations directing the Bank to proceed ahead in the matter having regard to the said observations made in the Order. The right and proper course for the learned Principal District Judge was to leave the Appellant-Bank free to deal with the Respondent in tune with the mandate of the Act of 2002. In that view of the matter and without going into further details which may otherwise prejudice the rights of the parties, we are inclined to allow this appeal to the extent of declaring that the observations made and findings recorded by the learned Principal District Judge as unnecessary. Accordingly, we allow this appeal by maintaining the portion of the impugned Order insofar as it declares the application/ Petition filed by the Respondent herein as premature and direct the Appellant-Bank to proceed ahead in the matter in tune with the mandate of the Act of 2002 uninfluenced with any of the observations made or findings recorded by the learned District Judge in the impugned Order.

Disposed of as above, along with connected CM(s).