Gurdev Singh vs Aditya Birla Finance Ltd. And Ors
2023 Latest Caselaw 14807 P&H

Citation : 2023 Latest Caselaw 14807 P&H
Judgement Date : 1 September, 2023

Punjab-Haryana High Court

Gurdev Singh vs Aditya Birla Finance Ltd. And Ors on 1 September, 2023

                                                 Neutral Citation No:=2023:PHHC:115250-DB




CM-12562-CWP-2023 and                   1      2023:PHHC:115250-DB
CM-12563-CWP-2023 in/and
CWP-9768-2023 (O&M)


      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

106+215                                 CM-12562-CWP-2023 and
                                        CM-12563-CWP-2023 in/and
                                        CWP-9768-2023 (O&M)
                                        Date of Decision: 01.09.2023

GURDEV SINGH
                                                      ... Petitioner
                   VERSUS

ADITYA BIRLA FINANCE LTD. AND ORS.

                                                      ....Respondents

CORAM: HON'BLE MRS. JUSTICE LISA GILL
       HON'BLE MRS. JUSTICE RITU TAGORE

Present:    Mr. Parunjeet Singh, Advocate
            for the petitioner.

            Mr. Jatin Bansal, Advocate and
            Mr. Keerti Sandhu, Advocate
            for respondents No.1 and 2.

            Mr. Sandeep Jain, Additional A.G. Punjab.

                          *****

LISA GILL, J.(Oral)

CM-12563-CWP-2023

This application is for placing on record written statement

along Annexures R-1 to R-4 on behalf of respondents No.1 and 2.

Written statement along with Annexures R-1 to R-4, are

taken on record, subject to just exceptions.

Application is disposed of accordingly.

CWP-9768-2023

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

07.12.2021 (Annexure P-2) issued under Section 13(2) of Securitization

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and Reconstruction of Financial Assets and Enforcement of Security

Interest Act (SARFAESI Act), 2002 Act, notice dated 26.05.2022

(Annexure P-3) under Section 13(4) of the SARFAESI Act and notice

dated 28.04.2023 (Annexure P-13) issued pursuant to order dated

31.03.2023 passed by District Magistrate, Jagraon with a further prayer

to regularize the account of the petitioner.

2. Notice of motion was issued in this writ petition by co-

ordinate Bench on 10.05.2023 while recording that two demand drafts

for a sum of Rs.6 lakhs have been handed over by the petitioner in

favour of the respondent-Financial Institution against outstanding of

Rs.23,37,307.78/- as on 05.11.2021. It was further recorded that

petitioner undertakes to deposit a sum of Rs.3 lakhs on the next date of

hearing and that overdue amount would be cleared by payment of the

said amount and loan can thereafter be restructured. It was further

undertaken that petitioner would continue to pay the EMIs regularly.

Dispossession of the petitioner was stayed subject to the petitioner

abiding by his undertaking. As recorded in order dated 07.08.2023, it

was informed by learned counsel for respondents No.1 and 2 that in

case, petitioner deposits another sum of Rs.4 lakhs apart from the

demand draft of Rs.6 lakhs, which is in the safe custody of learned

Registrar General, account of the petitioner would be regularized.

3. However, today learned counsel for the petitioner submits

that only a demand draft of Rs.3 lakhs is available with him and

petitioner is not in a position to deposit the total amount of Rs.4 lakhs

and at this stage, petitioner does not seek regularization of his account

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but seeks a One Time Settlement (OTS) instead.

4. Heard learned counsel for the parties.

5. Without adverting to the arguments as raised on the merits

of the matter, it is to be noticed that the petitioner has an efficacious

remedy for redressal of his grievance insofar as the initiation of

proceedings under SARFAESI Act against him by respondent financial

institution is concerned. Gainful reference in this regard can be made to

the judgments of Hon'ble the Supreme Court in Union Bank of India v.

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. Hon'ble the Supreme Court in the

case of M/s South Indian Bank (supra) while reiterating its earlier

judgments held that where an alternate efficacious remedy is available to

the litigant before a Forum constituted under a statute, interference by

the High Court in exercise of jurisdiction under Article 226 of

Constitution of India should be restricted to exceptional cases. It was

held as under:-

"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,

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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.

XXX

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."

6. No exceptional or extra ordinary circumstance has been

pointed out in this writ petition which calls for interference by this Court in

exercise of jurisdiction under Article 226 of Constitution of India.

7. In so far as the prayer addressed by learned counsel for the

petitioner that there should be a direction to the respondent Financial

Institution to enter into OTS with the petitioner, the same is devoid of

any merit especially keeping in view of the judgment of Hon'ble the

Supreme Court in The Bijnor Urban Cooperative Bank Limited,

Bijnor and others Vs. Meenal Agarwal and others, 2022 AIR (SC)

56. In view of the said judgment, it is apparent that there cannot be any

specific direction asking the Financial Institution to enter in a particular

OTS. An OTS is to be entered in between the parties on mutually