Writ filed by bidder against bank regarding mortgage dispute. Court held fact dispute regarding forgery not for writ jurisdiction. Granted 2-week temporary possession protection while allowing sale proceedings.
Writ petition closed; recovery proceedings continue; physical possession not disturbed for 2 weeks.
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GAHC010201122019
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6214/2019
1:SAKUNTALA KALITA
W/O. LT. KRISHNA KANTA KALITA, NILGIRI PATH, HOUSE NO.6, R.B. BARUAH ROAD, GUWAHATI-781024, P.S. GEETANAGAR, DIST. KAMRUP (M), ASSAM.
VERSUS
1:THE UNITED BANK OF INDIA
HAVING ITS REGD. OFFICE AT 11, MAMTA BASU SARANI, KOLKATA700001, BEING REP. IN THE PRESENT PROCEEDING BY THE REGIONAL MANAGER, UNITED BANK OF INDIA, 12/4 ASRAF ALI ROAD, NEW DELHI110002.
Advocate for the Petitioner : MS. P CHAKRABORTY
Advocate for the Respondent : MR. S CHAMARIA
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 05-09-2019
Heard Ms. P. Chakraborty, learned counel for the petitioner. I have also heard Mr. M. C. Phukan, learned counsel appearing for the respondent bank, who has produced the relevant documents for perusal by this Court. The documents produced by the learned counsel for the bank prima facie goes to show that a mortgage was in fact created over the property of the petitioner by her deceased husband. Although, Ms. Chakraborty has submitted that the signature of her husband
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has been forged, yet, such a disputed question of fact cannot be adjudicated in a writ proceeding.
By relying upon the decision of the Hon’ble Supreme Court rendered in the case of Oriental Bank of Commerce Vs. Sunder Lal Jain and another reported in (2008) 2 SCC 280, Mr. Phukan submits that dispute of this nature cannot be entertained by the Writ Court.
Having heard the learned counsel for the parties and on perusal of the materials on record, I find myself in agreement with the submission made by the respondents’ counsel. I am of the view that there is no scope for this Court to entertain the writ petition on the grounds stated therein.
At this stage, Ms. Chakraborty submits that her client is a widow without any means of earning and, therefore, her possession over the property be protected for at-least two weeks, so as to give her an opportunity to make alternative arrangement.
Taking note of the submission of Ms. Chakraborty and also the peculiar facts and circumstances of the case, I dispose of the writ petition by providing that the learned Recovery Officer may go ahead with the proceeding and if deemed necessary, issue notice for auction sale of the property. However, physical possession of the petitioner over her immovable property shall not be disturbed for a period of two weeks with effect from today.
With the above observation, the writ petition stands closed.
JUDGE
Sukhamay
Comparing Assistant
3 issues framed by the court
Whether the writ court can adjudicate a disputed question of fact regarding a forged mortgage signature.
Whether the petitioner's temporary possession over the property should be protected while recovery proceedings are pending.
Whether the writ petition should be disposed of on the ground that the dispute is not maintainable in writ proceedings.
Colour shows how this judgement treated each authority
Oriental Bank of Commerce Vs. Sunder Lal Jain and anotherRelied on¶18
Oriental Bank of Commerce Vs. Sunder Lal Jain and another (2008) 2 SCC 280 · Who else cites this
Sakuntala Kalita
The United Bank of India
Suman Shyam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
