Punjab-Haryana High Court
Kulwant Singh vs Art Hoouse Finance(India) Ltd. And Anr on 2 May, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:060697-DB
CWP No. 23809 of 2022 (O&M) -1-
2024:PHHC:060697-DB
202
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-23809-2022 (O&M)
Date of Decision: 02.05.2024
Kulwant Singh
...... Petitioner
Versus
Art House Finance (India) Ltd. and another .... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present: Ms. Nancy Vashistha, Advocate
for Mr. Parminder Singh, Advocate
for petitioner.
Mr. Chirag Wadhwa, Advocate
for respondents.
(through Video Conferencing)
****
LISA GILL, J.
1. Prayer in this writ petition is for setting aside notice dated
02.05.2022 (Annexure P-1) issued under Section 13(2) and notice issued
under Section 13(4) of Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short
'SARFAESI Act').
2. Learned counsel for petitioner submits that facility of home
loan was availed of by petitioner from respondent-Financial Institution (for
short 'F.I.'). Petitioner, it is stated was regularly paying the installments.
Due to outbreak of Pandemic Covid-19, moratorium was to be granted.
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Respondents, it is stated, arbitrarily increased the installment to Rs.16,000/-
per month from Rs. 15,031/- and period of loan account was raised from 15
years to 24 years in a unilateral fashion. When the petitioner raised an
objection, installment was reduced to Rs. 13,700/- per month, though, the
period remained at 24 years. It is submitted that a fraud has been
committed by respondents by misusing the cheques and blank papers which
had been got signed from petitioner. Complaint under Section 406, 420,
477-A, 506 of IPC has been filed by petitioner, apart from a civil suit
seeking rendition of accounts. Notice under Section 13(2) of SARFAESI
Act was issued on 02.05.2022 and notice dated nil under Section 13(4) of
SARFAESI Act was pasted on the house of petitioner. Petitioner came to
know that order under Section 14 of SARFAESI Act has also been obtained
by respondents. It is to be noted at this stage that in Para no. 4 of writ
petition, it is stated that petitioner was regularly paying the loan amount
and never defaulted in monthly installments, whereas, in the subsequent
paras, it is stated that petitioner suffered huge losses due to death of some
of the buffaloes he has kept.
3. Learned counsel for petitioner submits that petitioner is ready
and willing to settle the matter with respondents who are not coming
forward for the same as the F.I. only wants to seek possession of residential
house. At this stage, learned counsel for petitioner further submits that
matter regarding settlement is under consideration by respondents. It is thus
prayed that present writ petition be allowed and in any case should be
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adjourned till settlement is finalized.
4. Learned counsel for respondents has opposed this writ petition
while firstly raising the objection of entertainability of this writ petition
itself on the ground that writ is not entertainable qua non-banking housing
finance company. It is further submitted that petitioner deposited only the
first eight installments of loan facility which was availed of on 28.08.2018.
Petitioner, thereafter, failed to service the loan account. Proceedings under
the SARFAESI Act, it is submitted have been correctly initiated. It is
further submitted that petitioner has not submitted any concrete proposal
for One Time Settlement (OTS). Dismissal of writ petition is sought.
5. Heard learned counsel for parties and have perused the file.
6. Availing of financial credit by petitioner, subsequent financial
indiscipline for reasons as may be, is a matter of record. Keeping in view
the facts and circumstances of the matter, we do not find any ground
whatsoever for interference in this writ petition. 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
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Mathew Philip and another, 2023(2) RCR (Civil) 771.
7. Moreover, relief claimed in this writ petition is qua a private
non-banking housing finance company 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:-
"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
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learned counsel appearing on behalf of the borrowers are not of
any assistance to the borrowers."
8. Learned counsel for petitioner is unable to point out any
ground which calls for interference by this Court. There is also no merit in
the prayer that writ petition should be kept pending to await settlement.
Pendency or otherwise of this writ petition is irrelevant for the said
purpose.
9. Keeping in view the above, this writ petition is dismissed with
liberty to petitioner to avail the remedy(ies) available to him in accordance
with law. It is always open to the parties to arrive at any mutually
acceptable settlement. There is no expression of opinion on the merits of
matter.
10. Pending miscellaneous applications, if any, stand disposed of
accordingly.
(LISA GILL)
JUDGE
02.05.2024 (AMARJOT BHATTI)
lalit JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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