Punjab-Haryana High Court
Ms Ajay Kumar Nitin Kumar Proprietor ... vs The Nainital Bank Limited And Anr on 22 April, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:055011-DB
CWP-9012-2024 -1- 2024:PHHC:055011-DB
129
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-9012-2024
Date of Decision:- 22.04.2024
MS AJAY KUMAR NITIN KUMAR PROPRIETORSHIP FIRM
....Petitioners
Vs.
THE NAINITAL BANK LIMITED AND ANR ...Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MS. JUSTICE AMARJOT BHATTI
Present:- Mr. Saurabh Kaushik, Advocate for petitioners.
*****
LISA GILL, J.
1. Prayer in this writ petition is for quashing notice dated
11.11.2021 (Annexure P-4) issued under Section 13 (4) of Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short 'SARFAESI Act').
2. Brief facts necessary for adjudication of the matter are that on
17.06.2013, Vijay Kumar sole proprietor of petitioner Firm availed CC
limit for a sum of ₹15,00,000/- against collateral security of equitable
mortgage of House No.332/10, Ravi Nagar, Near Drona School, Basal
Road, Gurugram. On 10.03.2021, principal borrower - Mr.Vijay Kumar
passed away and thereafter due to financial indiscipline, loan account was
classified Non-Performing Asset (NPA) on 27.01.2021. Petitioners were
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served with notice (s) dated 21.08.2021 (Annexure P-2) issued under
Section 13 (2) and 11.11.2021 (Annexure P-4) issued under Section 13 (4)
of SARFAESI Act. Respondent-Bank also approached the Debt Recovery
Tribunal by way of OA-1648-2023 wherein notice was issued to petitioner
but no effective orders have been passed as yet.
3. Learned counsel for petitioners submits that absolutely illegal
and arbitrary action has been taken by respondent - Bank under the
SARFAESI Act. Mandatory provisions under SARFAESI Act, it is
contended, have not been followed. It is submitted that petitioners are
ready for One Time Settlement ('OTS'). The respondent - Bank, vide
communication dated 12.02.2024 which was received by petitioners on
20.04.2024, has called upon petitioners to submit concrete proposal
towards OTS offer. Petitioners shall be submitting their proposal
immediately but apprehension raised is that auction of the property is slated
for 24.04.2024. It is, thus, prayed that this writ petition be allowed.
4. Having heard learned counsel for the petitioner and perusing
the file, we do not find any ground to interfere in this writ petition in
exercise of jurisdiction under Article 226/227 of the Constitution of India.
At this stage, it is relevant to note that SARFAESI Act is complete code in
itself which brooks no interference by this Court at this stage except in
exceptional or extraordinary circumstances. Gainful reference in this regard
can be made to judgments of Hon'ble the Supreme Court in Union Bank
of India v. Satyawati Tandon and others 2010(8) SCC 110 and M/s South
Indian Bank Ltd. and others v. Naveen Mathew Philip and another,
2023(2) RCR (Civil) 771. While reiterating its earlier judgments, Hon'ble
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the Supreme Court in M/s. South Indian Bank has held as under:-
"13.......We may, however, reiterate the settled position of law
on the interference of the High Court invoking Article 226 of
the Constitution of India in commercial matters, where an
effective and efficacious alternative forum has been
constituted through a statute.
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14. A writ of certiorari is to be issued over a decision when
the Court finds that the process does not conform to the law
or statute. In other words, courts are not expected to
substitute themselves with the decision-making authority
while finding fault with the process along with the reasons
assigned. Such a writ is not expected to be issued to remedy
all violations. When a Tribunal is constituted, it is expected to
go into the issues of fact and law, including a statutory
violation. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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, 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.
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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
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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."
5. Learned counsel for petitioners is unable to point out any
extraordinary or exceptional circumstances which call for any interference
by this Court at this stage. All arguments as raised before us are very well
within the realm of consideration by the appropriate Authority/Tribunal as
provided under the Act. Argument that writ petition should be kept pending
till matter regarding OTS is finally concluded is not of any avail to
petitioner because it is settled position that borrower does not have vested
right for OTS. It is open for the parties to arrive at mutually acceptable
settlement. This order would not stand in the way of any settlement which
may be arrived at between the parties. Said argument is thus rejected.
6. Keeping in view the facts and circumstances, we do not find
any ground for interference in this writ petition. Writ petition is accordingly
dismissed with liberty to petitioners to avail remedy (ies) available to them
in accordance with law.
7. Pending miscellaneous application(s), if any, stand disposed of
accordingly as well.
(LISA GILL)
JUDGE
(AMARJOT BHATTI)
JUDGE
22.04.2024
snd Whether speaking/reasoned: Yes/No.
Whether reportable: Yes/No
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