Himachal Pradesh High Court
M/S Om Education Research And ... vs Of on 5 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWP No. 9760 of 2023.
.
Date of Decision : 5th December, 2023.
M/s Om Education Research and Management Society
.....Petitioner.
Versus
of
Punjab National Bank and Anr. .....Respondents.
Coram
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The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Rajneesh K. Lal, Advocate.
For Respondent No.1: Mr. Arvind Sharma, Advocate.
For Respondent No.2: Mr. I.N. Mehta, Sr. Addl. A.G. with
Mr. Navlesh Verma, Addl. A.G.
Tarlok Singh Chauhan, Judge (Oral)
Notice. Mr. Arvind Sharma, learned counsel and
Mr. Navlesh Verma, learned Additional Advocate General,
appear and waive service of notice on behalf of respondents
No.1 and 2 respectively.
...2...
2. The instant petition has been filed for grant of
.
following substantive reliefs:-
i) That the impugned notice dated 17.03.2023
contained in Annexure P-6, notice dated
25.07.2023 contained in Annexure P-7 and e-
of
auction sale notice dated 18.11.2023
contained in Annexure P-8 and Annexure P-10
may kindly be quahsed and set aside by
ii)
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issuing a writ in th enature of certiorari.
That the respondent-Bank may kindly be
directed not to initiate the auction
proceedings of the properties of the petitioner
society and further reasonable time may
kindly be granted to the petitioner society to
settle the entire loan amount by issuing a writ
in the nature of mandamus.
iii) That the respondents may also be directed to
settle the loan amount under the OTS (One
Time Settlement) as the petitioner society is
ready and willing to settle the entire loan
amount within a reasonable period.
iv) That this Hon'ble Court may kindly be please
to issue a writ of mandamus or any other
appropriate order of direction in favour of the
petitioner and against the respondent to the
effect that they may be restrained from
taking possession of the premises belonging
...3...
to the petitioner society in pursuance to
.
Annexure P-6, P-7, P-8 and P-10."
3. Since, the petitioner has assailed the notices as
also the e-auction sale notice(s) that have been issued by the
bank pursuant to the proceedings initiated against the
of
petitioner under The Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act,
rt
2002, (for short "SARFAESI Act"), clearly this Court has no
jurisdiction to entertain the instant petition as repeatedly held
by the Hon'ble Supreme Court. Reference in this regard can
be made one of the latest Judgment of the Hon'ble Supreme
Court in Bijnor Urban Cooperative Bank Limited, Bijnor
and others vs. Meenal Agarwal and others, (2023)2
SCC 805. It apt to reproduce hereinafter the relevant
observations made therein:-
"4.7. Ms. Meenakshi Arora, learned counsel
appearing on behalf of the appellant Bank has
heavily relied upon the decisions of the Allahabad
High Court in the case of M.M. Accessories v. U.P.
Financial Corporation, Kanpur, reported in AIR 2002
All 96 as well as another decision in the case of Vipin
Kumar Gupta v. Branch Manager, Union Bank of India,
Gyanpur, reported in AIR 2004 All 319 by submitting
that in the aforesaid two decisions, it is specifically
...4...
observed and held by the very High Court that no such
.
writ of mandamus directing to grant the benefit of OTS
can be issued in exercise of powers under Article 226
of the Constitution of India. It is submitted that though
the aforesaid decisions were cited before the High
Court, the same have not been dealt with and
considered by the High Court.
of
14. The sum and substance of the aforesaid
discussion would be that no writ of mandamus can be
issued by the High Court in exercise of powers
under Article 226 of the Constitution of India, directing
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a financial institution/bank to positively grant the
benefit of OTS to a borrower. The grant of benefit
under the OTS is always subject to the eligibility
criteria mentioned under the OTS Scheme and the
guidelines issued from time to time. If the
bank/financial institution is of the opinion that the
loanee has the capacity to make the payment and/or
that the bank/financial institution is able to recover the
entire loan amount even by auctioning the mortgaged
property/secured property, either from the loanee
and/or guarantor, the bank would be justified in
refusing to grant the benefit under the OTS Scheme.
Ultimately, such a decision should be left to the
commercial wisdom of the bank whose amount is
involved and it is always to be presumed that the
financial institution/bank shall take a prudent decision
whether to grant the benefit or not under the OTS
Scheme, having regard to the public interest involved
and having regard to the factors which are narrated
hereinabove.
...5...
15. In view of the aforesaid discussion and for the
.
reasons stated above, we are of the firm opinion that
the High Court, in the present case, has materially
erred and has exceeded in its jurisdiction in issuing a
writ of mandamus in exercise of its powers under
Article 226 of the Constitution of India by directing the
appellant-Bank to positively consider/grant the benefit
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of OTS to the original writ petitioner. The impugned
judgment and order passed by the High Court is hence
unsustainable and deserves to be quashed and set
aside and is accordingly quashed and set aside."
4.
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Since, this Court has no jurisdiction to entertain
the instant petition, the same is accordingly dismissed.
Pending applications, if any, also stand disposed of.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
5th
December, 2023. Judge.
(jai)
