Punjab-Haryana High Court
Mukesh vs Icici Home Finance Corp. Ltd And ... on 2 November, 2023
SUNIL
123 2023:PHHC: 139663-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-23786-2023 (O&M)
Date of Decision: 02.11.2023
MUKESH eee Petitioner(s)
Versus
ICICI HOME FINANCE CORP. LTD AND OTHERS _...... Respondent(s)
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Kamal Kumar Mor, Advocate
for the petitioner.
Er. Sandeep Suri, Advocate
for the respondents.
KkeREK
LISA GILL, J.
1. Prayer in this writ petition is for quashing order dated 18.08.2023
(Annexure P-1), passed by District Magistrate, Sonipat, under Section 14 of
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) and
notice dated 20.09.2023 (Annexure P-2), issued by Tehsildar-cum-Executive
Magistrate, Gohana.
2. Petitioner admittedly availed of loan facility from respondent-
Corporation in the year 2019. Due to financial indiscipline petitioner's account
was declared Non Performing Asset (NPA). Proceedings under SARFAESI Act
were initiated with notice under Section 13(2) of SARFAESI Act being issued
on 09.03.2023 with a demand of %22,97,715/-. Order dated 18.08.2023 was
ultimately passed by the District Magistrate, Sonipat under Section 14 of
SARFAESI Act. Violations.
of the provisions of SARFAESI Act have been pleaded in this writ petition.
2023.11.08 14:22
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CWP-23786-2023 (O&M) -2-
3. Heard learned counsel for the parties.
4. Apart from the fact that petitioner has an efficacious remedy for
redressal of grievance as raised in this writ petition under SARFAESI Act itself,
present writ petition, which has been filed seeking relief qua respondent no.1
i.e. ICICI Home Finance Corporation Ltd., is not maintainable. Gainful
reference in this regard can be made to judgment of Hon'ble the Supreme Court
in Phoenix ARC Private Ltd. Vs. Vishwa Bharati Vidya Mandir and others,
2022 AIR (SC) 1045, wherein it has been held as under:-
"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 Corporation v. Shri
C.A. imanual, (1969) 1 SCC 585 and Ramesh Ahluwalia
Vs. 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."
SUNIL
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CWP-23786-2023 (O&M) -3-
5. Learned counsel for respondent no.1 informs that qua total
outstanding of a little over %24,08,693/-, a proposal for One Time Settlement
(OTS) for a sum of %15,00,000/- has been offered to petitioner but he has
refused to accept the same.
6. At this stage, learned counsel for petitioner submits that there is a
possibility of settlement between the parties and matter be adjourned to explore
the same. However, we do not find any ground for adjourning the matter for this
purpose at this stage, with an earlier adjournment already having been given to
petitioner for this purpose. Needless to say parties are always at liberty to arrive
at any mutually acceptable settlement, irrespective of pendency of any
proceedings.
7. In so far as grievance(s), which petitioner may have qua
proceedings initiated under SARFAESI Acct, he is at liberty to avail remedy(ies)
available to him in accordance with law.
8. Writ petition is disposed of accordingly.
(LISA GILL)
JUDGE
(RITU TAGORE)
JUDGE
02.11.2023
Sunil Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
SUNIL
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