J&K Bank Limited And Others vs Sheikh Gowhar Rashid

Javed Iqbal Wani, J

The petitioners in the instant petition seek quashment of order dated 22.6.2023 (for short impugned order) passed by the court of Sub Judge (CJM) Srinagar (hereinafter referred to as the trial court) in civil suit titled as “Sheikh Gowhar Rashid vs. J&K Bank and another” whereunder the defendants petitioners herein came to be directed to de-seal the property of the plaintiff respondent herein that had been wrongly sealed along with secured assets which only were supposed to be sealed under the SARFAESI Act, 2002.

Heard learned counsel for the parties and perused the record.

At the very outset the counsel for the respondent raised a maiden preliminary objection qua the maintainability of the petition on the ground that the writ petition would not lie against the order passed by the civil court, in response to which the counsel for the petitioners stated at bar that the petition was, and be treated, under Article 227 of the Constitution and thus the same is maintainable.

Having regard to the facts and circumstances of the case and the nature of the controversy involved in the petition, same is treated as a petition under Article 227 of the Constitution.

The counsel for the respondent, however, would contend that the instant petition even under Article 227 of the Constitution is misconceived and premature at this stage, in that, the impugned order thrown challenge to in the petition is appealable and subject to the objections and in view of the consistent practice of the courts not to interfere with such orders, the petition is liable to be dismissed.

In response to the aforesaid submission of the counsel for the respondent, the counsel for the petitioners would contend that since the trial court initiated coercive measures for enforcement of its order even though no finding had been given about the identity of the secured assets and the subject matter of land which according to the respondent herein has been wrongly sealed along with secured assets, the petitioners were compelled to approach this court through the medium of instant petition under Article 227 of the Constitution. The counsel for the petitioners would further submit that the petitioners would be satisfied if the petition is disposed of with a direction to the trial court to have the property demarcated by the concerned Tehsildar in the first instance and that they will have no objection to de-seal that portion of the property which is found to be beyond secured assets.

Counsel for the respondent expressed his no objection to the proposal and the course suggested by the counsel for the petitioners provided the exercise is completed within shortest possible time.

Having regard to the facts and circumstances of the case, the instant petition is taken up for final disposal at this stage with the consent of the appearing counsel for the parties and is disposed of with a direction to the trial court to issue appropriate orders for having secured property demarcated on spot by the concerned Tehsildar within two weeks’ time and if upon such demarcation it is found that excess property has been sealed along with and in addition to the secured assets, same be de-sealed and restored to the plaintiff respondent herein.

Disposed of.