Jaskaran Singh Mansahia & Another vs Punjab National Bank & Another

L. Narayana Swamy , CJ

The grandmother of petitioner No.1 bequeathed the property by executing a Will dated 16.10.2015 in his favour. Petitioner No.2 is a natural guardian of petitioner No.1, who is also co-owner of the property. The grandmother of petitioner No.1 who executed the Will in his favour, initially mortgaged the property with respondent No.1 for raising loan and till her death she remained a defaulter. Respondent No.1 issued notice under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest ACT, 2002 ( for short, 'SRFAESI Act') to petitioner No.2 and the grandmother of petitioner No.1. The notice and also the notification for auctioning the property have been assailed before this Court by way of present writ petition. It is the submission of the petitioners that the property in question is being agreed to sell in favour of respondent No.2, who is none other than the better purchaser and if it is permitted, respondent No.2 will deposit the entire outstanding amount with respondent-Bank and after deducting the loan amount, the remaining amount will remain deposited with the respondent-Bank in favour of petitioner No.1 till he attains the age of majority. Hence, the learned Senior Counsel appearing for the petitioners prays that permission be granted to the petitioners to sell the property in favour of respondent No.2.

Learned counsel for respondent No.1 raised a question of maintainability of the writ petition on the ground that the petitioners have to approach the jurisdictional Court under the provisions of SRFAESI Act since the notice has been issued to petitioner No.2 as well as grandmother of petitioner No.1 under the provisions of said Act. Hence, he prayed that the present petition be dismissed. Respondent No.2 is a formal party, who is a prospective purchaser.

We have heard learned counsel for the parties and gone through the record.

Learned Senior Counsel appearing the petitioners has drawn our attention to Section 4 of the Guardians and Wards Act, 1890 and submits that the District Court has the meaning assigned to that expression in the Code of Civil Procedure and includes a High Court in the exercise of its ordinary original civil jurisdiction. He also refers to Section 5 of Guardians and Wards Act, 1890 and submits that the High Court has got jurisdiction to entertain this petition. Learned Senior Counsel also drawn our attention to Section 4A of Guardians and Wards Act, 1890, and submits that power to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers, the High Court retains its power though it has been delegated to the District Courts. Under these circumstances, learned Senior Counsel appearing for the petitioners submits that instead of directing the parties to approach the Competent Court, this Court would give necessary direction in the form of permission to sell the property to respondent No.2 with the condition that the remaining amount be deposited in favour of petitioner No.1 till he attains majority.

Here the question of maintainability has been raised by respondent No.1. As per Section 4A of the Guardians and Wards Act, 1890, power has been delegated to the District Court having jurisdiction to entertain his petition. The relief sought by the petitioners is civil in nature as the Will has been executed by the grandmother in favour petitioner No.1. Respondent No.1 who issued notice to petitioner No.2 as well as grandmother of petitioner No.1 has to approach the jurisdictional Court under the provisions of Guardians and Wards Act, 1890. When the powers itself have been delegated to the District Court, then for all intents and purposes, both the parties have to approach the jurisdictional Court. The petitioners are seeking permission to sell the property to respondent No.2, who is a prospective purchaser. In order to arrive at such a conclusion as to whether respondent No.2 is ready to purchase the property and whether the property is rightly valued, the jurisdictional Court has to obtain the valuation report for the said purpose, more particularly the Court has to satisfy whether the transaction or the approach of petitioner No.2 to sell property to respondent No.2 is in the interest of petitioner No.1 who is a minor.

In view of aforesaid observations, we are not inclined to interfere with this petition and dispose of the same by permitting both the parties to approach the jurisdictional court. Pending application(s), if any, also stand(s) disposed of.