Jammu & Kashmir High Court
Samba vs Samba on 9 July, 2026
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CM(M) No.138/2026
CM No. 4338/2026
Reserved on : 06.07.2026
Pronounced on: 09.07.2026
Uploaded on: 10. 07.2026
Whether the operative part or
full judgment is pronounced: Full
1. Nitish Sharma age 36 years
S/o Late Janak Raj Sharma
R/o Village Kartholi Bari Brahmana
Samba
2. Munish Sharma age 40 years
S/o Late Janak Raj Sharma
R/o Village Kartholi Bari Brahmana
Samba
..Petitioner(s)
Through: Mr. Manik Dutt, Advocate
Vs
1. Jammu and Kashmir Bank Ltd.
Through its Authorized Officer
Impaired Assets Portfolio Management Department
Zonal Office Jammu
Central Railhead Complex,
Panama Chowk Jammu.
2. Ayodhya Devi
w/o Late Janak Raj Sharma
R/o Village Kartholi Bari Brahmana
Samba
3. Radhika Sharma
D/o Late Janak Raj Sharma
R/o Village Kartholi Bari Brahmana
Samba
.....Respondents
Through: Mr. Ajay Kumar Gandotra, Sr. Advocate with
Ms. Lakshi Bral, Advocate
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
1. The petitioners by way of instant petition under Article 227 of the
Constitution of India have called in question the order dated 29.04.2026
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passed by the Court of Learned Principal District Judge, Samba in case
titled Nitish Sharma and another vs. Authorized officer and others in
file No. 02/2019/Sarfaesi Act.
2. Learned counsel for the petitioners submit that the petitioners had
challenged notices issued by the respondent No.1 under Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (hereinafter referred to as SARFAESI Act). He
further submits that the underlying petition had been instituted before
the Court below at a time when Section 17-A of the SARFAESI Act
was applicable to the erstwhile State of Jammu and Kashmir.
Subsequently, upon the adaptation of the Central laws and extension of
the jurisdiction of the Debt Recovery Tribunal to the Union Territory,
the jurisdiction to entertain such matters came to vest in the Debt
Recovery Tribunal, Chandigarh.
3. Learned counsel for the petitioners further submits that in terms of
Section 3 read with Section 31 of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993, the proceedings pending before
the learned Principal District Judge were required to be transferred to
the Debt Recovery Tribunal, Chandigarh. It is contended that the
impugned order is contrary to the statutory scheme governing transfer
of pending proceedings and has been passed in disregard of the settled
legal position. Learned counsel further submits that pursuant to
Notification No. S.O. 4717(E) dated 04.10.2022, the territorial
jurisdiction of the Debt Recovery Tribunal, Chandigarh stood extended
to the Union Territory of Jammu and Kashmir and, therefore, the
proceedings ought to have been transmitted to the said Tribunal in
accordance with law instead of being returned to the petitioners.
4. It is accordingly contended that the impugned order has been passed
without application of mind and also without appreciation of provisions
of law, therefore the same is liable to be set aside.
5. Heard learned counsel for the petitioners at length and perused the
record.
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3 CM(M) No.138/2026
6. The controversy involved in the present petition essentially turns upon
the interpretation of Section 31 of The Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, which is reproduced
hereinbelow for ready reference:
“Section 31 in The Recovery Of Debts Due To Banks And
Financial Institutions Act, 1993
31. Transfer of pending cases.
(1)Every suit or other proceeding pending before any Court
immediately before the date of establishment of a Tribunal
under this Act, being a suit or proceeding the cause of action
whereon it is based is such that it would have been, if it had
arisen after such establishment, within the jurisdiction of such
Tribunal, shall stand transferred on that date to such
Tribunal: Provided that nothing in this sub-section shall apply
to any appeal pending as aforesaid before any
Court.[Provided further that any recovery proceedings in
relation to the recovery of debts due to any multi-State co-
operative bank pending before the date of commencement of
the Enforcement of Security Interest and Recovery of Debts
Laws (Amendment) Act, 2012 under the Multi-State Co-
operative Societies Act, 2002, shall be continued and nothing
contained in this section shall apply to such
proceedings.] [Inserted by Act No. 1 OF 2013]
(2) Where any suit or other proceeding stands transferred
from any Court to a Tribunal under sub-section (1),
(a) the Court shall, as soon as may be after such transfer,
forward the records of such suit or other proceeding to the
Tribunal; and
(b) the Tribunal may, on receipt of such records, proceed to
deal with such suit or other proceeding, so far as may be,
in the same manner as in the case of an application made
under section 19 from the stage which was reached before
such transfer or from any earlier stage [* * *] [The words
“or de novo” omitted by Act 1 of 2000, Section 13 (w.r.e.f.
17.1.2000).] as the Tribunal may deem fit.
8 A bare perusal of the aforesaid provision makes it amply clear that
where the proceedings fall within the jurisdiction of Debt Recovery
Tribunal, the Court before which such proceedings are pending is
required to transfer the matter and forward the entire record to the said
Tribunal. The statutory scheme contemplates transfer of pending
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proceedings together with the record to the Tribunal. It does not
contemplate requiring the litigant to institute fresh proceedings before
the Tribunal by returning the petition.
9 The findings recorded by the Ld. Principal District Judge, Samba
particularly in para 15 and para 19 of the impugned order dated
29.04.2026 which is under challenge are reproduced hereinbelow:
“15. The present petition u/s 17(A) of the SARFAESI
Act filed by the petitioners has been filed beyond the
period of limitation i.e 45 days prescribed u/s. 17 (1) of
SARFAESI Act.”
“19. With these observations the petition filed by the
petitioner u/s. 17 (A) of the SARFAESI Act is returned
to the petitioners for filing the same before the
competent forum. All other original record shall be kept
in office. The all other original record shall be
consigned to record after due completion.”
10 Once, the learned Principal District Judge has concluded that the
jurisdiction earlier exercised under Section 17-A of the SARFAESI Act
no longer survived and the matter thereafter fell within the jurisdiction of
the Debt Recovery Tribunal, the necessary consequence flowing from
Section 31 of the Act of 1993 was to transmit the pending proceedings
along with the record to the Tribunal. The Learned Trial Court could not
adopt a procedure which is inconsistent with the statutory mechanism.
11 This Court finds merit in the submission advanced by learned counsel
for the petitioners. Having regard to the settled position of law, the
petition filed by the petitioners under Section 17 (A) of the SARFAESI
Act, ought to have been transferred to the Debt Recovery Tribunal,
Chandigarh. The course adopted by the learned Court below in
directing return of the petition to the petitioners for presentation before
the competent forum while retaining the original record, is contrary to
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the mandate of Section 31 sub-Section 2 Clause (a) of the Recovery of
Debts Due to Banks and Financial Institutions Act, 1993.
12 It is settled preposition of law that, where a Court declines to exercise
jurisdiction on the ground that the matter falls within the exclusive
jurisdiction of another forum, it ought not to record findings touching
upon the merits of the controversy or procedural objections which fall
for consideration before the competent forum. The role of the Court in
such circumstances is confined to giving effect to the statutory
mechanism governing transfer of the proceedings.
13 Furthermore, this Court is of the considered view that once, the learned
Principal District Judge had concluded that it lacked jurisdiction to
entertain the petition, the learned court couldn’t have recorded findings
touching upon the question of limitation or any other issue falling
within the domain of the competent Tribunal. Such observations were
uncalled for and were liable to prejudice the independent adjudication
of the matter by the learned Tribunal where the record ought to have
been transferred. If such findings are allowed to remain on record, it
may create an impression that the learned Principal District Judge was
competent to adjudicate the issues which, in fact was required to be
adjudicated by the competent forum i.e Debt Recovery Tribunal,
Chandigarh.
14 At this stage, Mr. Ajay Gandotra, learned Senior Counsel appearing for
respondent No. 1-J&K Bank, fairly submits that he has no objection to
the setting aside of the impugned order dated 29.04.2026 passed by the
learned Principal District Judge, Samba to the extent of the
observations made in para 15 and 19 of the aforesaid order and
consequently directing him to transfer the record of the file to the said
Tribunal in terms of the Section 3 read with Section 31 sub-section 2
clause (a) of the Act of 1993.
15 After examining the mechanism provided under the aforesaid statute
and also going through the findings recorded by the learned court
below, this Court deems it proper to allow the instant petition and the
impugned order dated 29.04.2026 passed by the learned Principal
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6 CM(M) No.138/2026
District Judge, Samba, is hereby set aside to the extent of the
observations made in paragraph 15 and 19 thereof.
16 Consequently, the Learned Principal District Judge, Samba is directed
to transfer the proceedings together with the entire original record to the
Debt Recovery Tribunal, Chandigarh forthwith, in conformity with
Section 3 read with Section 31 sub-section 2 clause (a) of The
Recovery of Debts Due To Banks And Financial Institutions Act, 1993.
17 The writ petition is allowed in the manner indicated herein above.
(WASIM SADIQ NARGAL)
JUDGE
JAMMU
09.07.2026
Vijay
Whether judgment is speaking: Yes/No
Whether judgment is reportable: Yes/No
