The High Court dismissed a writ petition seeking restoration of possession and benefit of the One Time Settlement (OTS) Scheme. Relying on the SARFAESI Act and the principle of estoppel due to prior partial performance of the settlement, the court held no ground for interference exists.
None granted; writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF DECEMBER, 2021
BEFORE
HON’BLE MS. JUSTICE SABINA
&
HON’BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No.7613 of 2021
Between:-
M/S NIKHIL ENTERPRISES PORP. NIKHIL KUMAR S/O SH. TILAK RAJ, A PROPRIETORSHIP CONCERN THROUGH ITS SPECIAL POWER OF ATTORNEY TILAK RAJ, S/O SH. VIDYA DASSS, VILLAGE HANDAL, POST OFFICE PIRSALUHI, TEHSIL RAKKAR, DISTRICT KANGRA
…...PETITIONER
(BY SH. KULWANT SINGH GILL, ADVOCATE)
AND
1. STATE BANK OF INDIA, CHAMUKHA, DISTRICT KANGRA, HIMACHAL PRADESH, THROUGH ITS AUTHORIZED OFFICER
2. STRESSED ASSETS RECOVERY BRANCH 40, SDA COMMERCIAL COMPLEX, ZONAL OFFICE BUILDING, KASUMPTI, SHIMLA, HIMACHAL PRADESH
…...RESPONDENTS
(BY SH. ARVIND SHARMA, ADVOCATE)
This petition coming on for admission this day, Hon’ble Ms. Justice Sabina, passed the following:
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O R D E R
Petitioner has filed the petition under Article 226 of the
Constitution of India seeking following reliefs:-
2. Learned counsel for the petitioner has submitted that the petitioner has approached the respondent-Bank under One Time Settlement (OTS) Scheme in terms of the order passed by this Court dated 27.10.2021. As per the settlement, petitioner has agreed to pay Rs.22,00,000/- (Rupees Twenty Two Lakhs only) to the respondent-Bank as full and final settlement of its claim. Petitioner has already paid Rs.3,30,000/- to the Bank and the remaining amount will be paid to the respondent-Bank on or before 15.02.2022. The benefit of OTS Scheme has not been given to the petitioner as per the Reserve Bank of India’s Regulations. The possession of the property in question be ordered to be restored to the petitioner. 3. Learned counsel for the respondent-Bank has submitted that the possession of the property in question was taken by the respondent-Bank on 27th September, 2021. In the proceedings before this Court in CWP No.6700 of 2021, it was the case of the petitioner that they already have a ready buyer with them
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and after selling the property in question, petitioner would repay the
loan in terms of the OTS Scheme.
4. Petitioner had earlier approached this Court by filing CWP No.6700 of 2021 and on 27th October, 2021, the said writ petition was disposed of by passing following order:-
2. Learned counsel for respondents-Bank states that internal one-time settlement is still in progress and in case the petitioner approaches the respondents-Bank within a reasonable period, the same can be considered in accordance with the instructions and guidelines issued from time to time.
3. Confronted with this, learned counsel for the petitioner prays for and is granted permission to withdraw the instant petition with liberty to file it afresh on the same and similar cause of action, if need so arises.
4. The instant petition is disposed of, as withdrawn, by permitting the petitioner to avail OTS in accordance with law, with liberty as aforesaid. Pending application(s), if any, also stands disposed of.”
5. Admittedly, in pursuance to the said order, petitioner
has approached the respondent-Bank under the OTS Scheme and parties have arrived at a settlement. Although, petitioner has already taken the benefit of OTS Scheme but has now prayed that the benefit of OTS Scheme has not been given to him as per RBI norms. Once the petitioner has already availed the benefit under the Scheme, it is estopped from challenging the settlement. Petitioner has already paid Rs.3,30,000/- to the respondent-Bank in pursuance
to the One time settlement arrived between the petitioner and the
Bank.
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Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 h ave already been initiated against the petitioner. Since possession of the property in question has been taken from the petitioner in the proceedings under Rule 8(1) of the SARFAESI Act, no ground for interference by this Court, while exercising jurisdiction under Article 226 of the Constitution of India, is made out.
Accordingly, the writ petition is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.
( Sabina ) Judge
( Jyotsna Rewal Dua ) December 04, 2021 Judge R.Atal/Mukesh
2 issues framed by the court
Whether the High Court can interfere under Article 226 when possession was taken under Rule 8(1) of the SARFAESI Act after a settlement.
Whether the petitioner is estopped from challenging the benefit of the OTS Scheme after availing it and making partial payment.
3 provisions across 2 enactments
M/s Nikhil Enterprises
State Bank of India
Stressed Assets Recovery Branch 40
Sabina
Jyotsna Rewal Dua
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
