Punjab-Haryana High Court
Raghav Mehra And Ors vs Hdfc Bank Ltd. And Ors on 21 August, 2023
Neutral Citation No:=2023:PHHC:108708-DB
2023:PHHC:108708-DB
151 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-18183-2023
Date of Decision: August 21, 2023
Raghav Mehra and others ...... Petitioners
Versus
HDFC Bank Limited and others ..... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Vishal Moudgill, Advocate for the petitioners.
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LISA GILL, J.
1. Prayer in this writ petition is for quashing notice dated
08.08.2023 (Annexure P2) under Section 13(2) of Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (for short - 'SARFAESI Act').
2. Leaned counsel for the petitioners submits that loan facility was
availed of by the petitioners in the year 2020 and property in question was
mortgaged with the respondent - Bank. Default had occurred in payments in
the year 2014, however, petitioners have been paying installments regularly
thereafter. Proceedings under the SARFAESI Act, it is submitted, have
been wrongly initiated against the petitioners.
3. Learned counsel for the petitioners insists that possession notice
dated 08.08.2023 is infact the first notice issued to the petitioners It is
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submitted that such a course could not have been adopted by the respondent
- Bank. It was incumbent upon the respondent - Bank to have first issued
notice under Section 13(2) of SARFAESI Act. Apart from the fact that
document attached as Annexure P-1 with this writ petition is not even
complete, learned counsel for the petitioners, when faced with mention of
demand notice dated 26.07.2014 under Section 13(2) of SARFAESI Act in
the said notice, is unable to give any details as to when loan in question was
regularized, as has been contended, may be after issuance of said notice
dated 26.07.2014, neither is there anything on record to indicate that
petitioners have since then been depositing the instalments regularly.
4. Be that as it may, without even delving on the correctness or
otherwise of the averments by the petitioners, in our considered opinion,
petitioners have an alternate efficacious remedy for redressal of the
grievance/s raised in this writ petition. It is a settled position of law that as a
general rule, there would be no interference by the High Court in exercise of
jurisdiction under Article 226 of the Constitution of India in the wake of
availability of efficacious alternate remedy to the litigant, except in
exceptional circumstances. Gainful reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in Union Bank of India v.
Satyawati Tandon and others, 2010(8) SCC 110; Varimadugu Obi
Reddy v. B. Sreenivasulu and others, 2023(1) R.C.R.(Civil) 34; M/s
South Indian bank Ltd. and others v. Naveen Mathew Philip and
another, 2023(2) RCR (Civil) 771 and Division Bench judgment of this
High Court in CWP No.10738 of 2022 (M/s Harinder Fabrics v. Shriram
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City Union Finance Ltd.) decided on 04.05.2023. Hon'ble the Supreme
Court in the case of M/s South Indian Bank (supra) held as under:-
"13. ...... We may, however, reiterate the settled position of law
on the interference of the High Court invoking Article 226 of
the Constitution of India in commercial matters, where an
effective and efficacious alternative forum has been constituted
through a statute.
xxx xxx xxx
14. A writ of certiorari is to be issued over a decision when
the Court finds that the process does not conform to the law or
statute. In other words, courts are not expected to substitute
themselves with the decision-making authority while finding
fault with the process along with the reasons assigned. Such a
writ is not expected to be issued to remedy all violations.
xxx xxx xxx xxx
15. The object and reasons behind the Act 54of 2002 are
very clear as observed by this Court in Mardia Chemicals Ltd.
v. Union of India, (2004) 4 SCC 311. While it facilitates a
faster and smoother mode of recovery sans any interference
from the Court, it does provide a fair mechanism in the form of
the Tribunal being manned by a legally trained mind. The
Tribunal is clothed with a wide range or powers to set aside an
illegal order and thereafter, grant consequential reliefs,
including re-possession and payment of compensation and
costs. Section 17(1) of the SARFAESI Act gives an expansive
meaning to the expression "any person", who could approach
the Tribunal.
xxx xxx xxx
18. While doing so, we are conscious of the fact that the powers
conferred under Article 226 of the Constitution of India are
rather wide but are required to be exercised only in
extraordinary circumstances in matters pertaining to
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proceedings and adjudicatory scheme qua a statute, more so in
commercial matters involving a lender and a borrower, when
the legislature has provided for a specific mechanism for
appropriate redressal."
5. Learned counsel for the petitioners is unable to point out any
extraordinary or exceptional circumstances which call for interference in
exercise of jurisdiction under Article 226 of the Constitution of India.
6. Keeping in view the facts and circumstances as above, this writ
petition is dismissed with liberty to the petitioners to avail remedy/remedies
available to them in accordance with law. It is clarified that there is no
expression of opinion on the merits of the matter.
(LISA GILL)
JUDGE
(RITU TAGORE)
August 21, 2023 JUDGE
rts
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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