Punjab-Haryana High Court
Rakesh Kumar vs Tata Housing Finance Ltd on 6 September, 2023
Neutral Citation No:=2023:PHHC:117638-DB
2023:PHHC:117638-DB
118 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-19065-2023
Date of Decision: September 06, 2023
RAKESH KUMAR ..... Petitioner
Versus
TATA HOUSING FINANCE LTD. ..... Respondent
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE RITU TAGORE
Present: Mr. Atul Prataap Dhankhar, Advocate for the petitioner.
Ms. Puja Chopra, Advocate for the caveator-respondent.
****
LISA GILL, J.
1. Prayer in this writ petition is for setting aside notice dated
15.10.2022 under Section 13 (2) of Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (for short -
'SARFAESI Act'); notice dated 11.01.2023 (Annexure P3) under Section 13
(4) of SARFAESI Act as well as order dated 07.03.2023 (Annexure P4)
under Section 14 of SARFAESI Act passed by District Magistrate, Karnal.
2. Learned counsel for the petitioner submits that default had
occurred due to outbreak of pandemic COVID-19. Petitioner's account was
declared Non-Performing Asset (NPA) on 03.09.2022 and he duly received
notice under Section 13(2) of SARFAESI Act, copy of which is, however,
not available with the petitioner. Notice under Section 13(4) of SARFAESI
Act was also received.
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3. Learned counsel for the petitioner submits that vide
communication dated 08.08.2023, petitioner had requested for OTS with
petitioner ready to deposit 10% of the amount immediately for which the
bank may be ready to settle after grant of concession and deductions, as may
be available as per the prevalent OTS policy. However, same has not been
considered by the respondent - Tata Capital Housing Finance Company.
4. Learned counsel for the respondent on advance notice, informs
that physical possession of the property was taken on 06.07.2023, pursuant
to order dated 07.03.2023, a fact which is not revealed in the writ petition.
Moreover, petitioner did not come forward with any specific proposal for
OTS except for sending letter dated 08.08.2023 which is evidently bereft of
any proposal by the petitioner. It is submitted that even as of now, in case,
petitioner is ready to deposit at least the reserve price, for which property
has to be auctioned on 25.09.2023, respondent would consider the One Time
Settlement, in case petitioner approaches well before the date of auction.
5. Having heard learned counsel for the parties, we do not find any
ground to interfere in exercise of jurisdiction under Article 226 of the
Constitution of India especially keeping in view the fact that petitioner has
efficacious alternate remedy under the SARFAESI Act for challenging the
proceedings thereunder. Furthermore, in view of judgment of Hon'ble the
Supreme Court in The Bijnor Urban Cooperative Bank Ltd. Vs. Meenal
Agarwal and others, 2022 AIR (SC) 56, there is no occasion of issuing a
direction to the respondent for accepting a particular OTS, as is sought to be
urged. Learned counsel for the respondent has, in any case, stated that a
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specific proposal if submitted by the petitioner well before the date of
auction alongwith the reserve price, such proposal would be considered in
accordance with applicable provisions. Thus, it is open to the petitioner to
take necessary steps.
6. It is further to be noted that petitioner is claiming relief qua
respondent, 'Tata Housing Finance Limited', which is admittedly a private
non-banking financial institution, therefore, no ground for interference is
called for in view of the judgment of Hon'ble the Supreme Court in Pheonix
ARC Private Limited versus Vishwa Bharti Vidya Mandir and others,
2022 (1) RCR (Civil) 888, 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 v. 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."
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7. Keeping in view the facts and circumstances as above, this writ
petition is dismissed with liberty to the petitioner to avail statutory
remedy/remedies as available to him in accordance with law. Needless to
say, parties are at liberty to arrive at any mutual agreeable settlement.
(LISA GILL)
JUDGE
(RITU TAGORE)
September 06, 2023 JUDGE
rts
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:117638-DB
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