Punjab-Haryana High Court
Deepak Yadav vs State Of Haryana And Others on 15 April, 2024
Author: Lisa Gill
Bench: Lisa Gill
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CWP No. 8267 of 2024 (O&M) 1
2024: PHHC:053252-PEB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 8267 of 2024 (O&M)
Date of Decision: April 15, 2024
DEEPAK YADAV
sesees Petitioner(s)
Versus
STATE OF HARYANA AND OTHERS
soseee Respondent(s)
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MS. JUSTICE AMARJOT BHATTI
Present: Mr. Neeraj Saini, Advocate
for the petitioner.
3h OK 2 3 ok
LISA GILL, J.
1. Prayer in this writ petition is for quashing notice dated
20.11.2023 (Annexure P-6) issued under Section 13(2) of Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (hereinafter referred to as the SARFAESI Act), notice dated
20.02.2024 (Annexure P-7) issued under Section 13(4) of SARFAESI Act as
well as order dated 03.04.2024 (Annexure P-8), under Section 14 of
SARFAESI Act, passed by learned Chief Judicial Magistrate, Gurugram.
There is a further prayer for stay of proceedings initiated against petitioner
under SARFAESI Act, during pendency of this writ petition.
2. Petitioner claims to be owner in possession of property in
question as detailed in para two of writ petition having purchased the same
from respondents no.5 and 6 after depositing entire sale consideration, as per
sale deed dated 01.12.2022. It is submitted that respondent no.5 had claimed
to acquire property in question vide Vasika no.18654 dated 13.11.2013 and
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same is so recorded in the assessment record of Municipal Corporation,
Gurugram for the year 2022-2023.
3. Learned counsel for petitioner submits that it came as a shock to
petitioner to know that respondents no.4 to 6 had obtained loan facility of
%3,88,50,000/-from respondent no.3 on 29.04.2017 and had mortgaged
property in question. Petitioner came to know about this fact on receipt of
notice from the Court of learned Civil Judge (Senior Division), Gurugram in
a civil suit filed by respondent no.3. Petitioner appeared before learned
Civil Court and recorded his statement that he would not create any third
party interest over suit property during pendency of civil suit. He also filed a
Criminal Complaint no.19352/CP/23/BYH on 25.09.2023, upon which FIR
No.3 under Sections 120-B and 420 IPC was registered on 02.01.2024 at
Police Station Sadar, District Gurugram. It is alleged that in an absolutely
illegal manner respondent no.3 -- Financial Institution issued notice dated
20.11.2023 under Section 13(2) of SARFAESI Act. Thereafter, notice dated
20.02.2024 was issued under Section 13(4) of SARFAESI Act. Order dated
03.04.2024 was passed by learned Chief Judicial Magistrate, Gurugram
under Section 14 of SARFAESI Act.
4. Learned counsel for petitioner argues that petitioner is a bona-
fide purchaser of property in question. Said purchase had been carried out
after due verification of revenue record and relevant documents. There was
no entry regarding loan or mortgage in relevant revenue record. Therefore,
proceedings initiated under SARFAESI Act are absolutely illegal, arbitrary
and should be quashed in so far as present petitioner is concerned. It is thus
prayed that present writ petition should be allowed.
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5. We have heard learned counsel for petitioner and have gone
through the file with his able assistance, however, we do not find any ground
to interfere in this matter at this stage in exercise of jurisdiction under Article
226 of the Constitution of India. SARFAESI Act is admittedly a complete
code in itself. It is a settled position that interference in proceedings under
SARFAESI Act in exercise of jurisdiction under Article 226 of the
Constitution of India has to be minimal and it is only in exceptional or
extraordinary circumstances that intervention should be there. In the case of
Union Bank of India Vs. Satyawati Tandon and others (Supra), it was
held by Hon'ble the Supreme Court as:-
"V7. kaa Both, the Tribunal and the Appellate Tribunal are
empowered to pass interim orders under Sections 17 and 18 and
are required to decide the matters within a fixed time schedule. It is
thus evident that the remedies available to an aggrieved person
under the SARFAESI Act are both expeditious and effective.
Unfortunately, the High Court overlooked the settled law that the
High Court will ordinarily not entertain a petition under Article
226 of the Constitution if an effective remedy is available to the
aggrieved person and that this rule applies with greater rigour in
matters involving recovery of taxes, cess, fees, other types of public
money and the dues of banks and other financial institutions. In our
view, while dealing with the petitions involving challenge to the
action taken for recovery of the public dues, etc., the High Court
must keep in mind that the legislations enacted by Parliament and
State Legislatures for recovery of such dues are code unto
themselves inasmuch as they not only contain comprehensive
procedure for recovery of the dues but also envisage constitution of
quasi judicial bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such cases, High Court must
insist that before availing remedy under Article 226 of the
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Constitution, a person must exhaust the remedies available under
the relevant statute.
18. While expressing the aforesaid view, we are conscious that the
powers conferred upon the High Court under Article 226 of the
Constitution to issue to any person or authority, including in
appropriate cases, any Government, directions, orders or writs
including the five prerogative writs for the enforcement of any of
the rights conferred by Part III or for any other purpose are very
wide and there is no express limitation on exercise of that power
but, at the same time, we cannot be oblivious of the rules of self-
imposed restraint evolved by this Court, which every High Court is
bound to keep in view while exercising power under Article 226 of
the Constitution. It is true that the rule of exhaustion of alternative
remedy is a rule of discretion and not one of compulsion, but it is
difficult to fathom any reason why the High Court should entertain
a petition filed under Article 226 of the Constitution and pass
interim order ignoring the fact that the petitioner can avail
effective alternative remedy by filing application, appeal, revision,
etc. and the particular legislation contains a detailed mechanism
for redressal of his grievance. It must be remembered that stay of
an action initiated by the State and/or its agencies/instrumentalities
for recovery of taxes, cess, fees, etc. seriously impedes execution of
projects of public importance and disables them from discharging
their constitutional and legal obligations towards the citizens. In
cases relating to recovery of the dues of banks, financial
institutions and secured creditors, stay granted by the High Court
would have serious adverse impact on the financial health of such
bodies/institutions, which ultimately prove detrimental to the
economy of the nation. Therefore, the High Court should be
extremely careful and circumspect in exercising its discretion to
grant stay in such matters. Of course, if the petitioner is able to
show that its case falls within any of the exceptions carved out in
Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad
AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade
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Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and
another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC
107 and some other judgments, then the High Court may, after
considering all the relevant parameters and public interest, pass
appropriate interim order."
6. This view has also been reiterated by Hon'ble the Supreme
Court in number of cases including that of M/s South Indian Bank Ltd. and
others vs. Naveen Mathew Philip and others, 2023 (2) R.C.R. (Civil) 771.
Learned counsel for petitioner is unable to point out any exceptional or extra
ordinary circumstance which calls for interference by this Court at this stage.
7. It is to be noted at this juncture that learned counsel for
petitioner on a pointed query was unable to inform as to whether petitioner is
in possession of original title documents in favour of respondent no.4 from
whom he had purchased the property. Be that as it may, petitioner admittedly
has efficacious remedy for redressal of his grievances as provided under
SARFAESI Act itself. Writ petition is accordingly dismissed with liberty to
petitioner to avail remedy(ies) as are available to him in accordance with law
while taking up all pleas as may be available.
8. There is no expression of opinion on the merits of the matter.
(LISA GILL )
JUDGE
(AMARJOT BHATTI)
April 15, 2024 JUDGE
sunil
Whether speaking/reasoned__:: Yes/No.
Whether reportable : Yes/No.
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