Srinagar vs 5. Tehsildar on 29 July, 2026

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    Jammu & Kashmir High Court – Srinagar Bench

    Srinagar vs 5. Tehsildar on 29 July, 2026

                                                                            Sr. No. 01
    
    
    
             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT SRINAGAR
                               (Through Virtual Mode)
    
                                   WP (C) No. 3167/2023
                                             Date of pronouncement: 29.07.2026
                                             Date of uploading: 29.07.2026
    
    1. Mohammad Ishaq Pampori (Age 73 years)
       S/o Haji Abdul Gani
    2. Mrs. Fahmida (Age 65 years)
       W/o Mohammad Ishaq Pampori
    3. Danish Hussain Pampori (Age 37 years)
       S/o Mohammad Ishaq Pampori
         Residents of Umer Colony, Lal Bazar,
         Srinagar                                        .....Applicant(s)/Petitioner(s)
    
                                   Through :- Mr. M.M. Dar, Advocate
    
                            v/s
    1. Jammu and Kashmir Bank, Ltd., through its
       Chairman, Corporate Headquarters, M.A.
       Road, Srinagar, Kashmir.
    2. Authorized Officer, Jammu and Kashmir
       Bank Ltd., Zonal Office, M.A. Road, Srinagar
       Kashmir.
    3. Manager, Jammu and Kashmir Bank, Branch
       University Campus, Hazratbal, Srinagar.
    4. Zonal Head Estates & Central Srinagar,
       Jammu and Kashmir Bank Ltd., Srinagar.
    5. Tehsildar, Tehsil North, Srinagar                            .....Respondent(s)
    
                                   Through :- Ms. Shafqat Nazir, Advocate
                                              Ms. Hina Baqal, Advocate
    
    CORAM: HON'BLE THE CHIEF JUSTICE (ACTING) (Through virtual mode)
           HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
    
                                  ORDER (ORAL)

    1. The petitioners invoke the extraordinary writ jurisdiction of this

    Court under Article 226 of the Constitution of India for seeking a

    SPONSORED

    writ of certiorari quashing notice dated 06.01.2023 issued by the
    2 WP (C) No. 3167/2023

    respondent-Bank under Section 13 (4) of the SARFAESI Act, 2002

    [“the Act”] read with Rule 8(1) of the Security (Enforcement)

    Interest Rules, 2002 [“the Rules”]. The petitioners also seek a

    mandamus to the respondent-Bank not to give effect to the impugned

    notice or dispossess the petitioners from the commercial cum

    residential building constructed upon land measuring 01 kanal and

    05 marlas falling under khasra no. 430, khewat no. 321 situated at

    Moza Habbak Tehsil North District, Srinagar [“the mortgaged

    property”].

    2. Briefly stated, the facts pleaded by the petitioners in this petition are

    that the petitioner nos. 1 and 2 are the owners of two storeyed

    commercial structure space in the multi-storeyed building popularly

    known as Karra Building situated at M.A. Road, Lal Chowk,

    Srinagar [“the leased property”].

    3. It is submitted that the respondent-Bank entered into a lease

    agreement for taking on rent the leased property known by the name

    of Kara Building on 09.08.2008 on the terms and conditions

    enumerated in the rent agreement executed on the same day.

    4. As per Clause 1 of the lease agreement, the leased premises were to

    remain on rent with the Bank for a period of fifteen years w.e.f.

    01.08.2008 with an option to the tenant to renew the same for any

    further period. The Clause 4 of the rent agreement, however,

    provided that the tenant-Bank shall have an option to terminate the

    tenancy of the leased premises by giving the landlord (the petitioner

    herein) a prior notice of one month in writing expressing therein their
    3 WP (C) No. 3167/2023

    intention to do so or on payment of one month‟s rent in lieu thereof.

    This was a different arrangement between the petitioners and the

    respondent-Bank, though, the rental payable to the petitioners on

    account of leased premises was being adjusted by the Bank towards

    loan taken by the petitioners against the mortgaged property. It is not

    disputed by the petitioners that there was a default in repayment of

    the loan amount which was granted to the petitioners to the tune of

    Rs. 48.00 Lakhs against the mortgaged property kept as collateral

    security. There is also no dispute with regard to the fact that the Bank

    having found that the loan account of the petitioners had turned NPA

    due to failure of the petitioners to adhere to the repayment schedule,

    had to initiate proceedings under SARFAESI Act. A notice under

    Section 13 (2), followed by a notice under Section 13 (4) of the

    SARFAESI Act of 2002 were issued and the mortgaged property was

    taken possession of.

    5. The petitioners submit that the Bank, acting in breach of the

    commitment made to the petitioners, terminated the lease

    prematurely on 14.02.2020, thus, depriving them the means to repay

    the loan. It is submitted that against the apprehended termination of

    the tenancy prematurely by the Bank, the petitioners approached the

    Civil Court wherein the Civil Court initially granted an order of

    status quo which was later on vacated. The appeal also failed and

    order of trial Court was not interfered with by the appellate Court on

    the ground that having regard to the nature of main relief claimed,

    the relief prayed for turned infructuous.

    4 WP (C) No. 3167/2023

    6. The short grievance projected by the petitioners before us is that till

    the issue, with regard to legal termination of the lease qua the leased

    property which is pending adjudication before the Civil Court, is

    determined, the petitioners should not be harassed for repayment of

    the loan. This is the sum and substance of the grievance projected by

    the petitioners.

    7. Having heard learned counsel for the parties and perused the material

    on record, we see no nexus or direct relation between the two

    transactions. Lease agreement qua the leased property is a distinct

    and independent contract entered into between the petitioners and the

    respondent-Bank. We could not find out any clause in the lease

    agreement which links the payment of rental with the loan amount

    borrowed by the petitioners against different security, i.e., mortgaged

    property. There may have been arrangement with the Bank for the

    purpose of appropriation of the rental towards the loan account, but

    that alone cannot make the lease agreement, executed between the

    petitioners and the Bank, a part of a loan documents. The petitioners

    may have a grievance against the Bank for premature termination of

    the lease agreement and such grievance, as noted above, is already a

    subject matter of adjudication before the Civil Court.

    8. We, therefore, deem it appropriate not to comment on the issue on

    merits lest it may prejudice the rights of the parties pending

    determination in the Civil Court. Suffice it to say, that loan

    transaction is quite different and completely independent of the lease

    agreement. The loan has been secured by the Bank against the
    5 WP (C) No. 3167/2023

    „mortgaged property‟ owned by the petitioners. In case of default in

    making the payment and the loan account having turned NPA, the

    Bank is well within its rights to proceed under the provisions of the

    SARFAESI Act. This is exactly what has been done by the

    respondent-Bank.

    9. The defence put forth by the petitioners that the respondent-Bank is

    liable to retain the possession of the leased property for up to 2023 or

    2028, as is reflected in the lease agreement, is not tenable for the

    reasons we have explained above. There is no other ground urged by

    Mr. M.M. Dar, Advocate which would convincingly demonstrate

    that the notice issued by the respondent-Bank under Section 13 (4) of

    the SARFAESI Act and the consequent taking over the possession of

    the lease property is vitiated in law in any manner.

    10. For all these reasons, we find no merit in this petition and the same

    is, accordingly, dismissed. We make it clear that nothing said by us

    in this order shall prejudice the rights of the parties which are subject

    matter of adjudication before the Civil Court.

                                    (Mohd. Yousuf Wani)                 (Sanjeev Kumar)
                                          Judge                          Chief Justice (A)
    
    JAMMU
    29.07.2026
    Manik
    
                            Whether this order is speaking: Yes/No
    
                           Whether this order is reportable: Yes/No.
     



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