Punjab-Haryana High Court
Nitin Sharma Alias Nitin Saraswat vs District Magistrate Faridabad And ... on 24 January, 2024
Author: Lisa Gill
Bench: Lisa Gill
SUNIL
CWP No.29269 of 2022 (O&M) -]-
2024:PHHC:009928-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.29269 of 2022 (O&M)
Date of Decision: 24.01.2024
NITIN SHARMA ALIAS NITIN SARASWAT
bases Petitioner(s)
Versus
DISTRICT MAGISTRATE FARIDABAD AND ANOTHER
eves Respondent(s)
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MS. JUSTICE AMARJOT BHATTI
Present: Mr. Harsh Chopra, Advocate
for petitioner.
Mr. Deepak Grewal, DAG, Haryana.
Mr. Vikas Chatrath, Advocate and
Mr. D.K. Singal, Advocate
for respondent no.2.
3B KK
LISA GILL, J.
1. Prayer addressed in this writ petition reads as under:-
(i) Issue a Writ in the nature of Mandamus, summoning the
entire records of the case;
(ii) Issue an appropriate writ/direction/order to Respondent no. 2
to set aside the order/direction declaring loan account of
petitioners as NPA, since the same is contrary to settled principles
of law;
(iii) Issue an appropriate writ/order/direction in the nature of
certiorari to quash/set aside all the actions undertaken by
respondent no. 2 - Bank under provisions of the Securitization and
Reconstruction of Financial Assets and Enforcement of Securities
Interest Act, 2002 (hereinafter referred to as SARFAESI Act),
inter alia against petitioner including but not limited to the notice
dated 21.06.2013 issued under Section 13/2 of SARFAESI Act,
2002 (Annexure P-1); Order dated 11.10.2022 passed under
Section 14, SARFAESI Act, 2002 (Annexure P-8) and 13.12.2022
issued by Respondent No. 2 (Annexure P-15);
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(iv) Stay the operation of all coercive action(s) against petitioners
undertaken by respondents no.2 in relation to the loan account of
petitioners, including impugned notices (Annexures P-1, P-8 and
P-15) during pendency of the present writ petition;
(v) Set aside all measures initiated/undertaken by respondent no. 2
Bank under Section 13 of SARFAESI Act read with the Security
Enforcement Rules, 2002, pursuant and subsequent to which
impugned notices were issued;
(vi) Issue a writ of Certiorari for quashing and setting aside
Letter/Order dated 28.10.2022 (Annexure P-13) vide which
request of petitioner dated 19.10.2022 requesting for a fresh
O.T.S. has been rejected in an arbitrary manner and with
consequential relief that an appropriate writ/direction/order be
issued to respondent No.2 to accept One Time Settlement (OTS)
proposal dated 19.10.2022. (Annexure P-12), interest of justice;
(vii) Issue, in alternative to the aforesaid prayer(s), a writ in the
nature of mandamus, directing respondent no.2 to grant extension
of time period to make remaining payment of OTS, as agreed vide
settlement letter dated 16.09.2019 (Annexure P-3), vide which
loan account of petitioner was settled for %56.00 lakhs, against
which petitioner has already paid 234.5 lakhs and for remaining
amount, extension may kindly be granted, in the interest of justice.
2. Availing of financial facility initially from City Financial
Consumer Finance India Limited with the debt being assigned subsequently
to respondent no.2, is a matter of record. Financial indiscipline on the part
of petitioner, for reasons as may be, is also a matter of record.
3. Learned counsel for petitioner has raised various arguments
claiming action under SARFAESI Act, to be illegal and arbitrary. It is further
submitted that order dated 11.10.2022, under Section 14 of SARFAESI Act
is patently illegal being in the teeth of judgment of this Court in Shriram
Housing Finance Ltd. Vs. State of Haryana and others, in CWP-3187-
2019, decided on 11.03.2022.
SUNIL
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SUNIL
4. Learned counsel for respondent no.2-Financial Institution (FI)
has opposed this writ petition on the ground of entertainability itself.
5. Having heard learned counsel for parties, we do not find any
ground to interfere in this writ petition at this stage in exercise of jurisdiction
under Article 226 of the Constitution of India. It is a settled position that
SARFAESI Act is admittedly a complete code in itself. Interference in
proceedings thereunder has to be minimal and it is only in exceptional or
extraordinary circumstances that interference is called for in exercise of
jurisdiction under Article 226 of the Constitution of India. Gainful reference
in this regard can be made to judgments of Hon'ble the Supreme Court in
Union Bank of India vs. 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) held as under:-
"13......We may, however, reiferate 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. XxxxXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXKXXX
15. The object and reasons behind the Act 54 of 2002 are
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SUNIL
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.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXKXXXXXK
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. All the pleas and grounds raised in this writ petition are very
well within consideration of appropriate forum/Tribunal as provided under
SARFAESI Acct itself.
7. Keeping in view the facts and circumstances as above, this writ
petition is dismissed with liberty to petitioner to avail remedy(ies) available
to him, in accordance with law for redressal of grievance(s) as raised in this
writ petition.
8. As interim order granted to petitioner on 19.12.2022 has
continued till date, same shall enure for a period of twenty (20) days from
the date of receipt of certified copy of this order, in order to enable petitioner
to avail appropriate remedy(ies) available to him in accordance with law. In
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case appropriate application/petition is filed by petitioner accompanied with
requisite application(s), question of continuance or otherwise of interim
order in favour of petitioner is necessarily in the realm of consideration by
appropriate forum in accordance with law without being influenced by any
order(s), which may have been passed in this writ petition. It is clarified that
interim order shall not enure after the period of aforesaid twenty (20) days in
the absence of appropriate order by competent authority/Tribunal in
accordance with law.
9. It is further clarified that there is no expression of opinion on
the merits of matter.
10. Pending miscellaneous applications, if any, stand disposed of
accordingly.
(LISA GILL)
JUDGE
(AMARJOT BHATTI)
24.01.2024 JUDGE
Sunil
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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