Punjab-Haryana High Court
Narinder Kaur And Another vs Punjab National Bank And Others on 31 August, 2023
CWP No.339 of 2023 (O&M) 1
2023:PHHC:113917-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 339 of 2023 (O&M)
Date of Decision:31.08.2023
Narinder Kaur and another
sesees Petitioners
Versus
Punjab National Bank and others
sevens Respondents
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Vishal Gupta, Advocate
for the petitioners.
Mr. Ankit Kaushal, Advocate
for respondents no.1 to 3.
Ms. Shivani Sharma, DAG., Punjab
oh 35 2K 3k
LISA GILL, J(Oral).
1. Prayer in this writ petition is for quashing the action of the
respondents in initiating proceedings under the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (for short 'SARFAESI Act'), whereby physical possession of
property of the petitioners as detailed in the writ petition is sought to be
taken by the respondent-Bank pursuant to notice dated 19.12.2022,
Annexure P-9.
2. Heard.
3. Learned counsel for the petitioners is unable to deny that
petitioner has an efficacious remedy for redressal of the grievance/s as raised
in this writ petition. Hon'ble the Supreme Court in a catena of judgments has
SANJAY KHAN
2023.09.05 18:04
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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. Hon'ble the
Supreme Court in Satyawati Tandon's case (supra) has held as under:-
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Vee Both, the Tribunal and the Appellate Tribunal are
empowered to pass interim orders under Sections 17 and 18
and are required to decide the matters within a fixed time
schedule. It is thus evident that the remedies available to an
aggrieved person under the SARFAESI Act are both expeditious
and effective. Unfortunately, the High Court overlooked the
settled law that the High Court will ordinarily not entertain a
petition under Article 226 of the Constitution if an effective
remedy is available to the aggrieved person and that this rule
applies with greater rigour in matters involving recovery of
taxes, cess, fees, other types of public money and the dues of
banks and other financial institutions. In our view, while
dealing with the petitions involving challenge to the action
taken for recovery of the public dues, etc., the High Court must
keep in mind that the legislations enacted by Parliament and
State Legislatures for recovery of such dues are code unto
themselves inasmuch as they not only contain comprehensive
procedure for recovery of the dues but also envisage
constitution of quasi judicial bodies for redressal of the
grievance of any aggrieved person. Therefore, in all such cases,
High Court must insist that before availing remedy under
Article 226 of the Constitution, a person must exhaust the
remedies available under the relevant statute.
SANJAY KHAN
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18. While expressing the aforesaid view, we are conscious that
the powers conferred upon the High Court under Article 226 of
the Constitution to issue to any person or authority, including in
appropriate cases, any Government, directions, orders or writs
including the five prerogative writs for the enforcement of any
of the rights conferred by Part III or for any other purpose are
very wide and there is no express limitation on exercise of that
power but, at the same time, we cannot be oblivious of the rules
of self-imposed restraint evolved by this Court, which every
High Court is bound to keep in view while exercising power
under Article 226 of the Constitution. It is true that the rule of
exhaustion of alternative remedy is a rule of discretion and not
one of compulsion, but it is difficult to fathom any reason why
the High Court should entertain a petition filed under Article
226 of the Constitution and pass interim order ignoring the fact
that the petitioner can avail effective alternative remedy by
filing application, appeal, revision, etc. and the particular
legislation contains a detailed mechanism for redressal of his
grievance. It must be remembered that stay of an action
initiated by the State and/or its agencies/instrumentalities for
recovery of taxes, cess, fees, etc. seriously impedes execution of
projects of public importance and disables them from
discharging their constitutional and legal obligations towards
the citizens. In cases relating to recovery of the dues of banks,
financial institutions and secured creditors, stay granted by the
High Court would have serious adverse impact on the financial
health of such bodies/institutions, which ultimately prove
detrimental to the economy of the nation. Therefore, the High
Court should be extremely careful and circumspect in
exercising its discretion to grant stay in such matters. Of
course, if the petitioner is able to show that its case falls within
any of the exceptions carved out in Baburam Prakash Chandra
Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556,
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai
(1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian
Oil Corporation Ltd. and others (2003) 2 SCC 107 and some
4.
other judgments, then the High Court may, after considering all
the relevant parameters and public interest, pass appropriate
interim order."
Hon'ble the Supreme Court in M/s South Indian Bank (supra)
while reiterating its earlier decisions held as under:-
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"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.
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.
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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."
5. Learned counsel for the petitioners is unable to point out any
exceptional or extraordinary circumstance which calls for interference in
exercise of jurisdiction under Article 226 of the Constitution of India. All the
arguments and pleas raised are very well within the ambit of consideration
by the learned tribunal.
6. Accordingly, this writ petition is dismissed with liberty to the
petitioners to avail the statutory remedy/remedies as available to them in
accordance with law. There is no expression of opinion on the merits of the
matter. Pending application/s, if any, stand/s disposed of accordingly.
( LISA GILL )
JUDGE
(RITU TAGORE)
August 31%, 2023. JUDGE
s.khan
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
SANJAY KHAN
2023.09.05 18:04
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integrity of this document
