Samba vs Samba on 9 July, 2026

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    Jammu & Kashmir High Court

    Samba vs Samba on 9 July, 2026

                                                                                 2026:JKLHC-JMU:2039
    
    
              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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    2 CM(M) No.138/2026

    SPONSORED

    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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    4 CM(M) No.138/2026

    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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    5 CM(M) No.138/2026

    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



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