Punjab-Haryana High Court
Subhash Chand vs Edelweiss Asset Reconstructin Company ... on 18 March, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:038132-DB
2024:PHHC:038132-DB
139
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-6449-2024
Date of Decision: 18.03.2024
Subhash Chand
..... Petitioner
Versus
Edelweiss Asset Reconstruction Company Limited and others
..... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present: Mr. Krishan Singh, Advocate
for the petitioner.
Mr. Harsh Chopra, Advocate
for respondents No. 1 and 2.
****
LISA GILL, J. (Oral)
1. Prayer in this writ petition is for quashing action of
respondent-Bank qua auctioning the residential house of petitioner without
following due process of law. There is a further prayer for restraining
respondents from auctioning mortgaged property of petitioner.
2. Petitioner, admittedly availed of loan facility of ₹21,99,445/-
from respondent-Bank on 21.04.2016. Financial indiscipline on the part of
petitioner, for reasons as may be, is a matter of record. It is the case of
petitioner that no notice under Section 13(2) or under Section 13(4) of
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short 'SARFAESI Act') has ever been
received by petitioner and without following due process of law,
possession of mortgaged property has been secured by respondents in an
illegal and arbitrary manner and in complete contravention of provisions of
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Neutral Citation No:=2024:PHHC:038132-DB
SARFAESI Act. Petitioner, it is submitted has requested respondent-Bank
to accept amount in installments but to no avail.
3. Learned counsel for respondents No. 1 and 2, who is on
advance notice, by raising objection qua entertainability of this writ
petition itself informs that property in question has been sold on
12.03.2024, pursuant to auction notice dated 03.02.2024 and sale has been
confirmed. It is submitted that notice dated 12.10.2020 under Section 13(2)
of SARFAESI Act and notice dated 06.04.2021 under Section 13(4) of
SARFAESI Act were duly issued to petitioner and action was taken in
accordance with law. All the relevant documents, it is submitted can be
again provided to learned counsel for petitioner, within next three working
days. Dismissal of writ petition is sought.
4. Having heard learned counsel for parties, we do not find any
ground whatsoever to interfere in the present matter. In so far as
proceedings under SARFAESI Act are concerned, it is a settled position
that petitioner has specific remedy(ies) provided under the Act itself which
is a complete code in itself. Interference by this Court is not called for in
such like matters except in extra-ordinary or exceptional circumstances in
exercise of jurisdiction under Article 226 of the Constitution of India.
Gainful reference in this respect 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 and M/s South Indian bank Ltd. and others v.
Naveen Mathew Philip and another, 2023(2) RCR (Civil) 771.
Moreover, relief claimed in this writ petition is qua a private non-banking
financial institution, therefore, present writ petition in any case is not
entertainable. Gainful reference in this respect can be made to judgment of
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Neutral Citation No:=2024:PHHC:038132-DB
the Hon'ble Supreme Court in Phoenix ARC Private Ltd. Vs. Vishwa
Bharati Vidya Mandir and others 2022 AIR (SC) 1045 , wherein it has
been held as under:-
"12. 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 and others, (1969) 1 SCC 585 and Ramesh Ahluwalia
vs. 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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5. Keeping in view the facts and circumstances as above, this
writ petition is dismissed with liberty to petitioner to avail efficacious
remedy(ies) available to him in accordance with law for redressal of his
grievance(s).
6. Pending miscellaneous application(s), if any, stand disposed of
accordingly as well.
(LISA GILL)
JUDGE
(AMARJOT BHATTI)
JUDGE
18.03.2024
lalit
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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