THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Jurisdiction)

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SINGLE: THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

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Cont.Cas(C) No.01 of 2025

Petitioner : Duk Nath Nepal

versus

Respondent : Tenzi Yeshi

Application under Article 215 of the Constitution of India

read with Section 12 of the Contempt of Courts Act, 1971

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Appearance

Mr. Pratap Khati, Advocate for the Petitioner.

Mr. Dilip Kumar Agarwal and Mr. Aditya Thakur , Advocates for the

Respondent.

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Date of Hearing : 13-11-2025

Date of Pronouncement : 13-11-2025

Date of Uploading : 13-11-2025

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JUDGMENT (ORAL)

Meenakshi Madan Rai, J.

1. The Petitioner is aggrieved by the proclamation of

Sale, dated 13-10-2022, concerning property which allegedly was

not mortgaged with the Contemner/Opposite Party, which is a

Bank. It is submitted by Learned Counsel for the Petitioner that

the Opposite Party had deliberately failed to disclose that the

property in question had a sole bidder, Smt. Leela Singhal, C/o Shri

Anil Singhal, a resident of M.G. Marg, Gangtok. That, the omission

and selective disclosure are wilful acts intended to suppress

material facts and mislead this Court. That, despite the stay

Order of this Court, the Contemnors had executed a Deed of

Conveyance in favour of one Smt. Leela Singhal on 06 -03-2024,

disobeying, disregarding and acting against the Orders of this

Court.

Cont. Cas(C) No.01 of 2025

Duk Nath Nepal vs. Tenzi Yeshi 2

2. To comprehend the matter in its correct perspective, it

is necessary to look into the backdrop of the instant matter.

Initially, the Petitioner was before a Single Bench of this Court in

WP(C) No.51 of 2021 seeking mandamus against the State

(Respondents No.1 and 2), the Allahabad Bank (Respondent No.3)

and the Recovery Officer of Debts Recovery Tribunal, Siliguri

(Respondent No.4). The prayers enumerated in the Writ Petition

(supra) were as under;

“a. Writ in the nature of Mandamus commanding

the respondents to uphold the sanctity of the

old laws and the new laws of Sikkim.

b. Writ in the nature of Certiorari directing the

Respondents to produce, submit and/or

authenticate all the relevant records, papers

and/ or documents before this Hon’ble Court so

that conscionable justice may be rendered

upon hearing all the parties.

c. For the cost/costs of and incidental to this

Petition be paid by the Respondents.”

3. The Learned Single Judge after considering the facts

and circumstances of the case ordered as follows;

“2. A narration of the facts in the Writ Petition

reflects that the petitioner had taken a loan from the

respondent no.3 sometime in the year 2006. On the

failure of the petitioner to make payment of the loan,

the respondent no.3 had to approach the DRT. It

transpires that on 03.11.2015 the DRT passed a

judgment issuing recovery certificate in favour of the

respondent no.3 for a sum of Rs.31,55,163/- against

the defendants therein jointly and severally with

pendentelite and future interest @ 13.5% per annum

with quarterly rests till realization and cost of the

application. The records also reveal that on

13.11.2019 the respondent no.4 proceeded to recover

the amount mentioned in the certificate. This order

was unsuccessfully challenged by the sons of t he

guarantor before this court. According to the

petitioner the respondent nos.3 and 5 are ignorant

about the laws of Sikkim. A perusal of the Writ

Petition suggests that the petitioner is seeking to

avoid the inevitable i.e. pay back the loan which was

admittedly taken and not repaid till date. This court is

of the firm view that such a Writ Petition is not

maintainable. Accordingly the Writ Petition is

dismissed.”

Cont. Cas(C) No.01 of 2025

Duk Nath Nepal vs. Tenzi Yeshi 3

4. The Petitioner was before the Division Bench of this

Court by filing WA No.05 of 2023, assailing the Order of the

Learned Single Judge passed in WP(C) No.51 of 2021. The Division

Bench in Writ Appeal on 01-08-2023 ordered inter alia as follows;

“…………………………………………

On 08

th

June, 2023, this Court passed the

following order:

―In our order dated 18

th

April, 2023,

we had provided the appellant an opportunity

to secure a sum of ₹ 32,00,000/ - (Rupees

thirty two lakhs only) by way of cash-security

to the satisfaction of the Registrar of this

Court, in the event he desired for an order

for stay of recovery proceedings.

Today, when the matter is taken up

for consideration, the Registry hands over to

us an affidavit which was affirmed on 03rd

June, 2023, wherefrom it appears that the

appellant has deposited the said amount of ₹

32,00,000/-(Rupees thirty two lakhs only) in

the office of the Registrar General, High

Court of Sikkim.

The only issue which the appellant is

trying to raise before us is that the property-

in-question — which the Recovery Officer is

trying to recover – was never mortgaged

with the Bank, in the first place. Since this

was the only issue involved — as observed in

our order dated 18

th

April, 2023 — we had

proposed to give an opportunity to the

respondent-Bank to make its stand clear

before this Court — on the basis of record —

as to whether the property-in-question was

at all mortgaged by the respondent-Bank or

not. However, this issue is still not clear to us

and the Bank should spell out its stand

clearly in this regard.

As such, we grant the respondent -

Bank, a further opportunity t o come up

before this Court with a clear answer, only in

respect of this issue, on the next date.

In the meanwhile, there shall be a

stay of recovery of proceedings being

initiated by the Bank against the appellant,

upon taking into consideration the depos it

made by the appellant in terms of our order

dated 18

th

April, 2023, with the Registrar

General of this Court.

List this matter for further

consideration on 06

th

July, 2023.‖

Today, when we take up the matter for further

consideration, we have before us an affidavit by the

respondent-Bank affirmed on 27

th

July, 2023 and filed

on the same date, wherefrom it appears as follows;

―2. That the main contention of the Appellant

in this Writ Appeal is that the property-in-

question from which the Recovery Officer is

trying to recover was never mortgaged with

the Bank by the Appellant. In this regard I

would like to submit as follows;

Cont. Cas(C) No.01 of 2025

Duk Nath Nepal vs. Tenzi Yeshi 4

i) It is an admitted fact that the property-in-

question was not mortgaged with the Bank

by the Appellant. However, during the

proceedings before DRT Guwahati,

Respondent No. 5 had submitted through

email a copy of letter dated 10.10.2017

issued by the SubDivisional Magistrate, East

District Collectorate, Gangtok that Shri Duk

Nath Nepal (Appellant) is the owner of the

land covered by Plot No.396 (area .2420),

405 (area .0240), 1191 (area .1680), 1489

(area .600), 1489/1789 (area .2460),

1248/1790 (area .1840) and is registered in

his name. That the said letter was issued by

the District Authority in response to RTI

application filed by the daughter of the

Respondent No.5. Accordingly, Hon'ble

Tribunal had opined that they must try to

recover the dues from the actual borrower

rather than from guarantor first.

ii) Pertaining to the order dated 20.02.2018

of DRT, Guwahati property of the Appellant

was attached Vide order dated 24.08.2018

by the DRT Siliguri.

iii) That the Appellant was afforded with

several opportunities and explained as to

why his attached property should not be put

up for sale, however, he failed to appear

before the Tribunal despite giving sufficient

time. In fact, Respondent No.3 had even

offered Appellant for the settlement of loan

by paying only Rs.12.50 lakhs approximately

under their Sashakt Scheme, that too he did

not pay heed to it. As such. Tribunal vide

order dated 13.11.2019 had passed a Sale

order of the attached property of the

Appellant as well as the mortgaged property

of the Guarantor.

iv) It is worth mentioning herein that

Appellant had never challenged the

attachment order before any authority of law

and prayed for the set aside of attachment

order 24.08.2018 nor have challenged the

sale order dated 13.11.2019, which is still

valid in the eyes of law, as such this appeal

become infructuous‖

Considering the specific assertions made on

behalf of the respondent-Bank, as quoted above, we

are of the view that in the facts and circumstances of

the instant case, the appellant ought to approach the

learned Debt Recovery Tribunal (DRT) at Siliguri, West

Bengal, where the issue sought to be raised before

this Court shall be adjudicated upon by the learned

Tribunal at Siliguri, in accordance with law.

In the meanwhile, the recovery proceedings

shall remain stayed and the amount of ₹ 32,00,000/-

(Rupees thirty two lakhs only) deposited by the

appellant in the office of the Registrar General, High

Court of Sikkim, shall remain so deposited till the

Tribunal at Siliguri finally disposes of the matter.

The appeal stands accordingly disposed of.

………………………………………… ”

Cont. Cas(C) No.01 of 2025

Duk Nath Nepal vs. Tenzi Yeshi 5

It is specific in the Order (supra) that the Appellant ought to

approach the DRT at Siliguri, West Bengal, where the issue sought

to be raised before this Court shall be adjudicated upon by the DRT

at Siliguri, in accordance with law.

5. During the submissions made by Learned Counsel for

the Respondent he has walked this Court through the Orders of the

DRT dated 10 -08-2023, wherein the DRT has taken into

consideration the Orders of this Court and also recorded that none

appears for the Certificate Debtor (CD) the Petitioner herein. The

matter was ordered to be listed on 15-09-2023, but was taken up

on 01-09-2023 by the DRT on a letter dated 04 -08-2023, having

been received from the SDM, DAC Gangtok. None appeared for the

Petitioner. The matter was again listed on 15 -09-2023, the

Petitioner/CD, again remained absent. On 21 -09-2023 also no

appearance was made by the Petitioner/CD before the DRT as also

on 04-10-2023. Another date apparently was fixed on 17-10-2023

which also reveals that the Petitioner/CD failed to enter appearance

and on 04-12-2023 another date was fixed by the DRT the

Petitioner/CD was again not before the Tribunal.

6. It is trite to mention here that the Petitioner/CD has

failed to appear before the DRT Guwahati earlier and before the

DRT Siliguri despite specific orders of the Division Bench of this

Court, dated 01-08-2023. It also needs no reiteration that when a

Petitioner approaches the Court, he has to come with clean hands.

In the facts and circumstances mentioned above, it is evident that

the Petitioner has failed to make an appearance before the DRT

despite the categorical orders of this Court and despite several

dates having been fixed before the DRT. The conduct of the

Cont. Cas(C) No.01 of 2025

Duk Nath Nepal vs. Tenzi Yeshi 6

Petitioner is itself adequate to indicate his recalcitrance in the

matter.

7. In such circumstances, I am of the considered view,

that it is in fact the Petitioner who has failed to take steps as

ordered by the Division Bench of this Court to enable him to clarify

his case. In the absence of the Petitioner/CD the DRT and the

Respondent Bank have taken necessary steps which the Petitioner

now alleges is wilful disobedience of the orders of this Court. I find

that there is no wilful disobedience of the orders of this Court and

the allegation made is frivolous and an abuse of the process of

Court. The Petition consequently deserves to be and is accordingly

dismissed.

8. Pending applications, if any, also stand dismissed and

disposed of.

( Meenakshi Madan Rai )

Judge

13-11-2025

Approved for reporting : Yes

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