Surendra Nath Yadav Vs. Debt Recovery Officer, And 3 Others
Allahabad High Court (Division Bench (DB)- Two Judge)
WRIT - C, 32715 of 2017, Judgment Date: Aug 01, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 37
Case :- WRIT - C No. - 32715 of 2017
Petitioner :- Surendra Nath Yadav
Respondent :- Debt Recovery Officer, And 3 Others
Counsel for Petitioner :- Ajay Kumar Pandey,Shiva Shanker Yadav
Counsel for Respondent :- C.S.C.,Ravi Chandra Srivastava
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
Heard leaned counsel for the petitioner and the learned Standing Counsel. We had adjourned the matter for the day vide order dated 28th July, 2017 extracted herein below:-
"Heard learned counsel for the petitioner and Sri Ravi Chandra Srivastava, learned counsel for the respondent Bank.
Sri Srivastava on behalf of the Bank submits that with effect from 1st of April 2017, the State Bank of Bikaner & Jaipur has been amalgamated with the State Bank of India. In view of this, if the petitioner wants any relief against the Bank, he may proceed accordingly.
Learned counsel for the petitioner submits that so far as the sale part is concerned, the same is already complete and it is now the Recovery Officer, who has to proceed to deliver possession.
Learned counsel has invited the attention of the Court to Section 28 (5) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to contend that the Recovery Officer is now empowered to proceed in the matter.
The contention raised in this petition is that in spite of the sale having been confirmed and the appeal filed against the same having been dismissed, delivery of the possession has not been effected by the Recovery Officer.
It has been pointed out that under the aforesaid provision, the manner and procedure to be followed in such matters is as per the Third Schedule to the Income Tax Act, 1961 (hereinafter called as the 'Act 1961').
The Third Schedule to the 1961 Act makes a provision that the procedure, as far as may be, shall be the same as provided for in the Second Schedule. Rule 92 of the Second Schedule makes a provision for framing of Rules by the Board. Sub Rule 2(b) & (d) of Rule 92 indicate that Rules can be framed for prescribing the manner in which any property sold under this schedule may be delivered as well as the procedure for dealing with resistance or obstruction offered by any person to a purchaser of immovable property sold under this schedule in obtaining possession of the property.
Learned counsel prays that matter may be taken up on Tuesday, i.e., 1.8.2017 to enable him to produce the Rules applicable in this regard.
Put up on Tuesday, i.e., 1.8.2017."
The present writ petition has been filed for ensuring the delivery of possession of the premises which has been purchased in an auction by the petitioner and the sale confirmation certificate has also been issued as stated in the petition.
It is also alleged that the borrower had filed an appeal which has also been dismissed and the order of the Appellate Authority dated 8th March, 2017 has become final and has not been assailed before any other court of competent jurisdiction.
The rules that would apply in the present circumstances are the rules that have been framed under the Income Tax Act, 1961. The Rules are the Income Tax (Certificate) Proceedings Rules, 1962 that have been framed in exercise of the powers conferred under the 1961 Act, in terms of the Second Schedule appended thereto, about which we had made a reference in the order extracted herein above. A copy of the said rules has been produced before us and we find that for the purpose of delivery of immoveable property, Rule 39 of the 1962 Rules, read with Rule 40 are relevant for the said purpose. Further, if any obstruction is caused to the delivery of possession to the purchaser, then the Rules in Part VI further provides empowering the recovery officer to take action. The said Rules are Rule 41 to 47.
Consequently, in view of the aforesaid facts that have been brought before us, we find that the petitioner has the remedy of moving an application before the first respondent, who shall on receipt of the said application proceed to take such action as may be permissible under the Rules referred to herein above after putting the 4th respondent to notice and take action in accordance with law as expeditiously as possible, preferably within three months from the date of production of a certified copy of this order.
The petition is disposed to with the aforesaid directions.
Order Date :- 1.8.2017
BKM/-