Punjab-Haryana High Court
Sharief Alias Shareef Alias ... vs District Magistrate Gurugram And ... on 27 July, 2023
Neutral Citation No:=2023:PHHC:096998-DB
2023:PHHC:096998-DB
CWP-26469-2021 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
237 CWP-26469-2021
Date of Decision: 27.07.2023
SHARIEF ALIAS SHAREEF ALIAS SHARIF KHAN
... Petitioner
VERSUS
DISTRICT MAGISTRATE GURUGRAM AND OTHERS
....Respondents
CORAM: HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Arjun Atri, Advocate
for the petitioner.
Mr. J. S. Yadav, Advocate
for respondent No.2.
*****
LISA GILL, J.(Oral)
1. Petitioner has filed this writ petition challenging
proceedings under the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act (SARFAESI Act), 2002
Act initiated by respondent No.2 namely, Shubham Housing
Development Finance Company Limited.
2. Loan facility was availed of by the petitioners in 2016. Due
to financial indiscipline their account was declared NPA on 04.12.2017.
Notice under 13 (2) and 13 (4) of SARFAESI Act was issued on
22.06.2018 and 24.08.2018 respectively and order under Section 14
1 of 3
Neutral Citation No:=2023:PHHC:096998-DB
2023:PHHC:096998-DB
CWP-26469-2021 :2:
SARFAESI Act was passed on 01.12.2021. Aggrieved therefrom this
writ petition has been filed.
3. Admittedly, respondent No.2 is a private non-Banking
Financial Company (NBFC). Therefore, in view of judgment of Hon'ble
Supreme Court in Phoenix ARC Private Limited Vs. Vishwa Bharati
Vidya Mandir and others, 2022 (5) SCC 345, no ground for
interference is made out in exercise of jurisdiction under Article 226 of
the Constitution of India. Relevant paragraph of above said judgment
reads as under:-
"12. 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 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
2 of 3
Neutral Citation No:=2023:PHHC:096998-DB
2023:PHHC:096998-DB
CWP-26469-2021 :3:
Corporation (supra) and Ramesh Ahluwalia (supra) relied
upon by the learned counsel appearing on behalf of the
borrowers are not of any assistance to the borrowers."
4. Keeping in view the facts and circumstances, we do not find
any ground for interference in this matter. Writ petition is accordingly
dismissed with liberty to the petitioners to avail the remedy/remedies as
may be available to them in accordance with law.
(LISA GILL)
JUDGE
(RITU TAGORE)
JUDGE
27.07.2023
Rimpal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:096998-DB
3 of 3
