Binder Singh vs State Of Punjab And Others
2023 Latest Caselaw 14268 P&H

CWP No.18868 of 2023 (O&M) 1

2023:PHHC:114994-DB

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 18868 of 2023 (O&M)
Date of Decision:28.08.2023

Binder Singh
sesees Petitioner
Versus
State of Punjab through its Secretary and others
sevens Respondents

CORAM:- HON'BLE MRS.JUSTICE LISA GILL HON'BLE MRS. JUSTICE RITU TAGORE Present: Mr. J.S.Bhinder, Advocate for the petitioner.

36 2k 3k ie 3 LISA GILL, J(Oral).

1. Prayer in this writ petition is for quashing order dated

04.07.2022, Annexure P-2 passed by respondent no.2 under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') and notice dated 28.07.2023, Annexure P-3 issued by respondent no.3, for taking physical possession of the property of petitioner.

2. Learned counsel for the petitioner submits that petitioner has not received any notice from the Bank regarding initiation of SARFAESI proceedings and is in receipt of notice dated 28.07.2023, issued by the Field Kanungo, Patiala, pursuant to order dated 04.07.2022 passed by the

Additional District Magistrate, Patiala, under Section 14 of the SARFAESI

Act.

3. Heard learned counsel for the petitioner.

4. Keeping in view the fact that the petitioner has an efficacious

camay xnayeermate remedy for redressal of his grievance/s as raised in this writ

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petition, we do not find it just and expedient to delve into the merits of the matter. The Hon'ble Supreme Court in catena of judgments has held that the High Court should desist from interference in such matters under the SARFAESI Act in exercise of jurisdiction under Article 226 of the Constitution of India except in exceptional and extraordinary circumstances. Gainful reference can be made to the judgment of Hon'ble Supreme Court in Union Bank of India Vs. Satyawati Tandon and others, 2010(8) SCC 110, Varimadugu Obi Reddy Vs. B. Sreenivasulu and others, 2023(1) RCR (Civil) 34, M/s South Indian Bank Limited and others Vs. Naveen Mathew Philip and another, 2023(1) RCR (Civil) 771 and Division Bench judgment of this High Court in CWP No. 10738 of 2022, titled M/s Harinder Fabrics Vs. Shriram City Union Finance Limited, decided on 04.05.2023. Hon'ble Supreme Court in M/s South Indian Bank (supra) held as under:-

"13.0.0... 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.

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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. When a Tribunal is constituted, it is expected to go into the issues of fact and law, including a statutory violation.

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15. The object and reasons behind the Act 54 of 2002 are very clear as observed by this Court in Mardia Chemicals Ltd. v.

SANJAY KHAN

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5.

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 of 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. XX XX XX XX

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 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."

Therefore, interference by this Court, at this stage, in exercise

of jurisdiction under Article 226 of the Constitution of India, is not justified

in view of alternate remedy available to the petitioner and in the absence of

any exceptional or extraordinary circumstances. Furthermore, it is to be

noted that respondent no.4 is a private non-banking financial institution,

therefore in view of the judgment of Hon'ble the Supreme Court in Phoenix

ARC Private Limited vs. Vishwa Bharti Vidya Mandir and others, 2022

(1) RCR (Civil) 888, no ground for interference, in any, case is made out in

exercise of jurisdiction under Article 226 of the Constitution of India. It has

been held by the Hon'ble Supreme Court in the abovesaid matter as under:-

SANJAY KHAN

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"Even otherwise, it is required to be noted that a writ petition against the private financial institution - ARC - appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI

6.

Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation v. Shri C.A. Imanual, (1969) 1 SCC 585 and Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 relied upon by the learned counsel appearing on behalf of the

borrowers are not of any assistance to the borrowers."

Accordingly, this writ petition is dismissed with liberty to the

petitioner to avail the statutory remedy/remedies as available to him in

accordance with law. There is no expression of opinion on the merits of the

matter.

(LISA GILL ) JUDGE (RITU TAGORE) August 28", 2023. JUDGE s.khan

SANJAY KHAN

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Whether speaking/reasoned : Yes/No.

Whether reportable : Yes/No.