Allahabad High Court
M/S Shri Chotelal Smarak Sarvoday ... vs Reserve Bank Of India Deptt. Of ... on 27 June, 2022
Bench: Sangeeta Chandra, Om Prakash Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 5
Case :- WRIT - C No. - 4001 of 2022
Petitioner :- M/S Shri Chotelal Smarak Sarvoday Shikshan Sansthan Thru. Manager Shri Santosh Kumar
Respondent :- Reserve Bank Of India Deptt. Of Supervision Thru. Regional Director And Others
Counsel for Petitioner :- Jayant Pratap Singh
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Om Prakash Tripathi,J.
(1) We have heard the learned counsel for the parties and perused the record.
(2) This petition has been filed by the petitioner challenging the proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act, 2002) by the Respondent nos.2 & 3 against the petitioner including the Notices dated 18.11.2021 & 31.05.2022.
(3) It is the case of the petitioner that the Respondent-Company is a non-banking Finance Company registered under the Regulations framed by the Reserve Bank of India. The action of the Company is in discharge of its public duty towards the consumers and therefore this petition is maintainable before this Court under Article 226 of the Constitution of India.
(4) The petitioner is the Manager of M/S Shri Chotelal Smarak Sarvoday Shikshan Sansthan and running a Inter College. It had availed a credit facility of Rs.22,40,342/- from the Company. A mortgage deed was executed on 03.10.2018 with regard to certain land owned by the petitioner. Under Section 13 of the SARFAESI Act, 2002, only secure interest credit in favour of secured creditors can be enforced. In this case, the mortgage deed is only for an amount of Rs.5 lacs and therefore a loan of Rs.22 lacs and odd as taken by the petitioner from the Respondent-Company is not a totally secured loan, and therefore the notice issued under Section 13 (4) of the SARFAESI Act, 2002, by the Respondent-Company is without jurisdiction and ought to be set aside.
(5) It has been submitted that initially the Ministry of Finance had issued a Notification on 24.02.2020 wherein non-banking Finance Company could also recover their secured interest through procedure of the SARFAESI Act, 2002, for a loan of Rs.50 lacs and above. Later on, by a Notification dated 12.02.2021 the Central Government has extended the threshold and now NBFC can recover secured interest with regard to loan of Rs.20 lacs and above also. In pursuance of such Notification the Respondent-Company has issued the notice through its Authorized Officer under Section 13 (4) for taking possession of the land of the petitioner Khasra No.326, admeasuring 0.400 hectares situated in Village Veerabhari, Viraulijhan, Pargana Khandasa, Tehsil Milkipur, District Faizabad.
(6) It has been submitted that as is evident from the notice issued by the Respondent-Company, an amount of Rs.29,28,969/- is sought to be recovered against the loan that the petitioner received for a sum of Rs.21,41,082/-. The petitioner has made repayment of certain amount through EMIs which has not been adjusted also by the Respondent-Company.
(7) The petitioner has remedy of approaching the Debt Recovery Tribunal (DRT) under Section 17 of the Act as has been settled by the Hon'ble Supreme Court in its judgments rendered in Mardia Chemicals Vs. Union of India reported in 2004 (4) SCC 311 and Union Bank of India Vs. Satyawati Tandon reported in 2010 (8) SCC 110.
(8) This Court finds no good ground to show interference under Article 226 of the Constitution of India.
(9) This petition hence dismissed on ground of statutory remedy being available to the petitioner.
Order Date :- 27.6.2022
PAL
