- (1.) This writ petition is under Article 226 of the Constitution, whereby and whereunder, the order dated 05.01.2017 passed in S.A. No.31 of 2015 by the Debt Recovery Tribunal at Ranchi has been assailed by which the said S.A. has been dismissed.
(2.) The brief facts of the case which led the petitioner to approach before this Court by way of filing the writ petition which is the second one is that one of his brother who having his share upon the property in the name of the father namely Triveni Prasad Singh has claimed to one of the co-sharer being the son of late Triveni Prasad Singh but the other brother namely Binay Singh has got a credit facilities by mortgaging the property lying in the name of his father namely late Triveni Prasad Singh but that on one reason or the other, the account fallen under the category of non-performing assets which led the respondent Bank to take recourse of the provision of SARFAESI Act , 2002 which ultimately culminated into a proceeding under Section 13(4) of the SARFAESI Act, 2002. The brother of the borrower namely Bijoy Singh has approached before this Court under Section 13(4) of the SARFAESI Act, 2002 by filing a writ petition being W.P.(C) No.5050 of 2014 but a Coordinate Bench of this Court while passing an order on 19.12.2014 has not interfered with the merit of the case, however, liberty had been accorded to the petitioner to approach before the Forum as per the provision conferred under Section 17 of the SARFAESI Act, 2002, in pursuance thereto, the SARFAESI application has been filed before the DRT, Ranchi being S.A.No.31 of 2015. The petitioner has agitated the ground about his right after death of his father by way of co-sharer merely on the ground of tendering one affidavit before the Mutating Authority questioning that whether the legal right conferred to him after death of his father upon the property in question can be relinquished but the DRT has not considered the aforesaid aspect of the matter and dismissed the SARFAESI application concluding therein that the applicant has got no interest over the property and filed the case at the behest of the borrower, the said order is under challenge by way of this writ petition.
(3.) Mr. Rajesh Kumar, learned counsel appearing for the Respondent-Bank has raised the issue of maintainability of the writ petition on the ground of availability of remedy of appeal as provided under Section 18 of the SARFAESI Act, 2002.;