Mr. Justice Tarlok Singh Chauhan

Section 35 of Real Estate (Regulation and Development) Act, 2016 clearly enumerates the provisions of CPC that are applicable to the proceedings before RERA | As per the principles of expressio unius, all other provisions of CPC are excluded from applying to the proceedings before the RERA – Sumit Khanna and Anr. Vs. Kanchan Sunil Adani and Ors. – Himachal Pradesh High Court

Hon’ble Himachal Pradesh High Court referring sub-section (2) of Section 35 of the Real Estate (Regulation and Development) Act, 2016 held that according to the principles of expressio unius, it can conveniently be held that vide the expressio unius principle, the RERA clearly enumerates the provisions of CPC that are applicable to the proceedings before it and on the same principle, the Legislature is, therefore, deemed to have intentionally excluded all other provisions of CPC from applying to the proceedings before the RERA.

Section 35 of Real Estate (Regulation and Development) Act, 2016 clearly enumerates the provisions of CPC that are applicable to the proceedings before RERA | As per the principles of expressio unius, all other provisions of CPC are excluded from applying to the proceedings before the RERA – Sumit Khanna and Anr. Vs. Kanchan Sunil Adani and Ors. – Himachal Pradesh High Court Read Post »

Whether the State Excise and Taxation Department will have priority over the secured creditors debt – State of H.P. and Ors. Vs. Acacia Traders – Himachal Pradesh High Court

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Whether the State Excise and Taxation Department will have priority over the secured creditors debt – State of H.P. and Ors. Vs. Acacia Traders – Himachal Pradesh High Court Read Post »

Whether the different departments of the State including Excise and Revenue will have priority over the Secured Creditors’ debt under SARFAESI Act, 2002 – State Bank of India Vs. State of H. P. and Ors. – Himachal Pradesh High Court

Hon’ble Himachal Pradesh High Court held that once the petitioner is a secured creditor and has moreover created the first charge over the property, then obviously, it has the first right to realise its dues and this question is no longer res integra in view of the authoritative pronouncement of the Hon’ble Supreme Court in Punjab National Bank Vs. Union of India & Ors. (2022) ibclaw.in 12 SC.

Whether the different departments of the State including Excise and Revenue will have priority over the Secured Creditors’ debt under SARFAESI Act, 2002 – State Bank of India Vs. State of H. P. and Ors. – Himachal Pradesh High Court Read Post »

Non-obstante clause in Section 26E of SARFAESI Act shall prevail over the MSMED Act, in absence of any specific express provision giving priority for payment under the MSMED Act over the dues of the secured creditors or over any Taxes or Cesses payable to Central/State Government or Local authority – Canara Bank Vs. State of Himachal Pradesh & Ors. – Himachal Pradesh High Court

High Court of Himachal Pradesh held that while dealing with the scope of MSMED Act, 2006 vis-à-vis SARFAESI Act, 2002 and the validity of the order of attaching of mortgaged secured assets, in view of recoverable dues, the Hon’ble Apex Court has categorically held Kotak Mahindra Bank Ltd. vs. Girnar Corrugators Pvt. Ltd. and Others (2023) ibclaw.in 05 SC, that non-obstante clause in Section 26E of SARFAESI Act shall prevail over the MSMED Act, in absence of any specific express provision giving priority for payment under the MSMED Act over the dues of the secured creditors or over any taxes or cesses payable to central/state government or local authority.

Non-obstante clause in Section 26E of SARFAESI Act shall prevail over the MSMED Act, in absence of any specific express provision giving priority for payment under the MSMED Act over the dues of the secured creditors or over any Taxes or Cesses payable to Central/State Government or Local authority – Canara Bank Vs. State of Himachal Pradesh & Ors. – Himachal Pradesh High Court Read Post »

Court, in exercise of its jurisdiction, cannot go into the decision of Bank in classifying Borrower’s account as NPA – M/s. Neelkanth Yarn Vs. Punjab National Bank & ors. – Himachal Pradesh High Court

Hon’ble High Court held that:
(i) The Court, in exercise of its jurisdiction, cannot go into the decision of respondent-bank in classifying the petitioner’s account as NPA. If the respondent-bank proceeds further and reaches Section 13(4) of the SARFAESI Act stage, the petitioner-firm can file application under Section 17 of the SARFAESI Act. The DRT can go into the aspect of classifying the account as NPA and also whether RBI guidelines have been violated on any aspect leading to declaring the account as NPA and taking recourse under the SARFAESI Act.
(ii) The aspect of classifying an account as NPA is not justiciable in exercise of power of judicial review under Article 226 of the Constitution.

Court, in exercise of its jurisdiction, cannot go into the decision of Bank in classifying Borrower’s account as NPA – M/s. Neelkanth Yarn Vs. Punjab National Bank & ors. – Himachal Pradesh High Court Read Post »

Writ petition seeking quashing of the notices issued under Sections 13(2 as also 13(4) of the SARFAESI Act, 2002 is clearly not maintainable – M/s Dynamic Sales Vs. District Magistrate, Solan & Ors. – Himachal Pradesh High Court

Learned counsel for R2 has submitted that once proceedings under the SARFAESI Act have been initiated, then the party aggrieved has to avail of the remedy under SARFAESI Act itself and no writ petition would lie or be maintainable much less entertainable.
Hon’ble High Court referred judgment in M/s Kartik Food vs. State of H.P. & Anr. and M/s Neel Kanth Yarn vs. Punjab National Bank & Ors. and held that the instant petition seeking quashing of the notices issued under Sections 13(2 as also 13(4) of the SARFAESI Act, is clearly not maintainable, as the remedy, if any, of the petitioner, lies before the concerned Debt Recovery Tribunal.

Writ petition seeking quashing of the notices issued under Sections 13(2 as also 13(4) of the SARFAESI Act, 2002 is clearly not maintainable – M/s Dynamic Sales Vs. District Magistrate, Solan & Ors. – Himachal Pradesh High Court Read Post »

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