Punjab-Haryana High Court
Om Parkash Sharma And Others vs District Magistrate Panchkula And ... on 13 December, 2023
Author: Lisa Gill
Bench: Lisa Gill
SUNIL
CWP No.25379 of 2023 (O&M) -]-
2023:PHHC:159412-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.25379 of 2023 (O&M)
Date of Decision: 13.12.2023
Om Parkash Sharmaand others | --__...... Petitioner(s)
Versus
District Magistrate Panchkula and others --_..... Respondent(s)
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Ravi Sharma, Advocate for
Mr. Sunil Bhardwaj, Advocate
for petitioners.
None for respondents no.3 and 4.
He 2 ie 2
LISA GILL, J.
1. Prayer in this writ petition is for quashing order dated
03/04.07.2023 (Annexure P-9), passed by District Magistrate, Panchkula,
under Section 14 of Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the
SARFAESI Act) with a further prayer to conclude proceedings initiated by
respondent-Bank under SARFAESI Act.
2. Learned counsel for petitioners submits that Suresh Sharma son
of petitioner no.1 had invested his entire earnings and savings in establishing
an industrial unit over land measuring 7 Kanals, 15 Marlas as described in
para 2 of writ petition. Said property was owned by M/s. Kaiser Life with
its proprietor Smt. Anjana Sharma i.e. daughter in law of petitioner no.1 and
wife of Suresh Sharma. Suresh Sharma and his son namely Pulkit Sharma
stood guarantors for loan facility of 2.78 crores taken by M/s. Kaiser Life
from respondent no.3-Bank. It was Suresh Sharma who had purchased land
in the name of Anjana Sharma from his earnings and savings after taking
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SUNIL
voluntary retirement from service in the year 2014-2015. Suresh Sharma,
however, unfortunately committed suicide on 23.12.2022 while blaming his
in-laws for the same. After his demise, Anjana Sharma, his wife and son
Pulkit Sharma also committed suicide on 24.12.2022. FIR No.138 dated
24.12.2022 was registered at Police Station Phase XI, SAS Nagar (Mohali)
in this regard. In the meanwhile account of M/s. Kaiser Life was declared
Non Performing Asset and proceedings under SARFAESI Act were initiated
against the firm and its guarantors through legal heirs without mentioning
names of legal heirs. Civil Suit no.117 of 2023, Annexure P-4, was filed by
present petitioners while impleading the parents of Smt. Anjana Sharma.
3. Learned counsel for petitioners submits that petitioners are
Class-II legal heirs of Smt. Anjana Sharma and Class-I legal heirs of Pulkit
Sharma. They are ready and willing to discharge the liabilities of M/s. Kaiser
Life. Petitioners have sought substitution as partners of M/s. Kaiser Life
from respondents no.3 to 5. It is submitted that petitioners are ready and
willing to discharge financial liabilities of M/s. Kaiser Life but they should
be substituted as borrowers because petitioners are entitled to properties in
question. It is prayed that this writ petition should be allowed.
4. Learned counsel for respondent-Bank has opposed this writ
petition while submitting that present writ petition is not entertainable
keeping in view judgments of Hon'ble the Supreme Court in Union Bank of
India vs. 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. It is further submitted that action under SARFAESI Act is
being taken in accordance with law. It is thus prayed that this writ petition be
dismissed.
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5. Heard learned counsel for the parties and have perused file with
their able assistance.
6. It is undeniable that petitioners indeed have statutory remedy
for redressal of grievance as raised by them in this writ petition. SARFAESI
Act is admittedly a complete code in itself. There is no scope for
interference in exercise of jurisdiction under Article 226 of the Constitution
of India except in exceptional or extraordinary circumstances. Learned
counsel for petitioners is unable to point out any such extraordinary
circumstance which calls for interference by this Court. All pleas raised are
very well within the realm of consideration by Appropriate Forum. Gainful
reference in this regard can be made to judgments of Hon'ble the Supreme
Court as mentioned in para 4 above. 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.
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."
7. Keeping in view the facts and circumstances of the case, writ
petition is dismissed with liberty to petitioners to avail statutory alternate
remedy(ies) available to them in accordance with law. It is clarified that
there is no expression of opinion on the merits of the controversy
8. Pending miscellaneous applications, if any, shall stand disposed of
accordingly.
(LISA GILL)
JUDGE
(RITU TAGORE)
JUDGE
13.12.2023
Sunil
Whether speaking/reasoned: Yes/No
SUNIL Whether reportable: Yes/No
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