Punjab-Haryana High Court

Tarsem Lal vs The Deputy Commissioner Pathankot ... on 18 March, 2024

Author: Lisa Gill

Bench: Lisa Gill

CWP No. 2855 of 2024 (O&M) -1-
2024: PHHC:038120-DB

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CWP No.2855 of 2024(0&M)
Date of Decision: 18.03.2024

TARSEM LAL
sseees Petitioner
Versus

THE DEPUTY COMMISSIONER PATHANKOT AND OTHERS

sesees Respondents

CORAM:- HON'BLE MRS. JUSTICE LISA GILL

HON'BLE MS. JUSTICE AMARJOT BHATTI
Present: Mr. R.K. Arya, Advocate

for the petitioner.

36 2k 2g 2 2

LISA GILL, J(Oral).

1. Petitioner in this writ petition challenges order dated 09.02.2023

(Annexure P-12), passed by respondent no.1 under Section 14 of Securitization and Reconstruction of Financial Asset Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act).

2. Petitioner admittedly availed of loan facility from M/s. Dewan Housing Finance Limited for a sum of 250,40,946/- on 28.05.2018. It is submitted that petitioner was depositing installments as they fell due but it later came to knowledge of petitioner that M/s. Dewan Housing Finance Limited fabricated signatures of petitioner and obtained a life insurance policy only in order to secure a premium. It is further submitted that M/s. Dewan Housing Finance Limited was taken over by Piramal Capital & Housing Finance Limited. No notice whatsoever was issued to petitioner in

this respect, therefore, passing of order dated 09.02.2023 under Section 14 of

SANJAY KHAN

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SARFAESI Act, is stated to be absolutely illegal and in complete violation of mandatory provisions of SARFAESI Act. Moreover, respondent no.3 - Piramal Capital & Housing Finance Limited, in any case has no right to proceed against petitioner. Assignment of debt is illegal and arbitrary. It is thus prayed that this writ petition be allowed.

3. Heard learned counsel for petitioner and have gone through the file with his able assistance but we do not find any ground whatsoever to interfere in this writ petition in exercise of jurisdiction under Article 226 of Constitution of India.

4. Availing of loan facility through M/s. Dewan Housing Finance Limited now represented by respondent no.3 - Piramal Capital & Housing Finance Limited, is admitted. Passing of order dated 09.02.2023 under Section 14 of SARFAESI Act is also a matter of record. Question of correctness, illegality or otherwise of the same is not to be determined by this Court in the present jurisdiction as SARFAESI Act is a complete code in itself, which provides for specific remedies to petitioner for redressal of grievance(s) as raised in this writ petition. In the case of Union Bank of India Vs. Satyawati Tandon and others (Supra), it was held by Hon'ble the Supreme Court as:-

ae re 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

SANJAY KHAN

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SANJAY KHAN

2024.03.23 14:58

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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 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 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."

This has thereafter been reiterated in the case of M/s South

Indian Bank Ltd. and others vs. Naveen Mathew Philip and others, 2023

(2) R.CR. (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 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:-

SANJAY KHAN

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"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 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."

Learned counsel for petitioner is unable to point out any ground

which calls for interference at this stage. Keeping in view facts and

circumstances above, this writ petition is dismissed with liberty to petitioner

to avail remedy(ies) available to him in accordance with law.

There is no expression of opinion on the merits of the matter.

(LISA GILL ) JUDGE

(AMARJOT BHATTI)

March 18, 2024. JUDGE

sunil

SANJAY KHAN

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