Punjab-Haryana High Court
Palo Devi vs State Of Punjab And Others on 19 October, 2024
Author: Lisa Gill
Bench: Lisa Gill
Neutral Citation No:=2024:PHHC:136736-DB
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CWP-884-2022
203 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-884-2022
Date of Decision: October 19, 2024
Palo Devi ..... Petitioner
Versus
State of Punjab and others ..... Respondents
CORAM:- HON'BLE MRS. JUSTICE LISA GILL
HON'BLE MRS. JUSTICE SUKHVINDER KAUR
Present: Mr. S.S. Kamboj, Advocate for the petitioner.
Mr. G.S. Bhullar, AAG, Punjab.
Mr. D.K. Singal, Advocate for respondents No. 2 and 3.
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LISA GILL, J.
1. Prayer in this writ petition is for setting aside proceedings under
Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short - 'SARFAESI Act') initiated against the
petitioner.
2. It is pleaded that petitioner and her husband availed of financial
facility from Citi Finance Consumer Finance India Limited on 22.06.2007.
Property as mentioned in para 3 of the writ petition was mortgaged. Their
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accounts were declared Non-Performing Asset (NPA) on 31.01.2010 and
31.05.2011 statedly in an illegal manner. Arbitration award dated 30.10.2013, it
is stated was passed for sum of Rs.4,74,669/-. Execution petition was filed.
Complaint under Section 138 of Negotiable Instruments Act was also filed. In
the said proceedings, amount in question was deposited and complaint was
withdrawn. However, proceedings under SARFAESI Act were initiated by
Kotak Mahindra Bank Limited to which debt had been assigned. Notice(s)
under Section 13(2) and 13(4) of SARFAESI Act were issued on 17.05.2013
and 29.04.2014 respectively and order under Section 14 of SARFAESI Act was
passed on 17.08.2016. Aggrieved therefrom, present writ petition has been filed.
3. As per the case of respondent - Bank, debt in question was
assigned to it by Citi Finance Consumer Finance India Limited. Complaint
under Section 138 of Negotiable Instruments Act was not withdrawn on account
of receipt of amount in question or any kind of settlement with borrower. It was
withdrawn simplicitor on statement on behalf of said complainant (City Finance
Consumer Finance India Ltd.), which was closing (winding up) all its activities
in India. There is nothing on record to indicate that amount in question was ever
deposited by the borrower. It is submitted that present writ petition is not
entertainable. Possession of the property had been taken by respondent - Bank
in accordance with law but petitioner and her son forcibly wrested it back in
respect to which FIR No. 92 dated 29.09.2022 under Sections 448, 506 IPC at
Police Station Sanour, District Patiala has also been lodged. E-auction of the
property had been successfully carried out on 11.11.2021 and sale certificate
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CWP-884-2022
issued on 22.11.2021. Due to conduct of petitioner and her son, respondent is
being subjected to undue harassment. Dismissal of the writ petition is sought.
4. We have heard learned counsel for parties and have gone through
the file with their assistance, however, we do not find any ground to interfere in
the matter. It is a settled position that interference by this Court in exercise of
jurisdiction under Article 226 of Constitution of India in such like matters has to
be minimal and actuated only in extra-ordinary and exceptional 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; Varimadugu Obi Reddy v. B. Sreenivasulu and others,
2023(1) R.C.R.(Civil) 34 and 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, 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.
xxx xxx xxx
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.
xxx xxx xxx xxx
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 or 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
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an expansive meaning to the expression "any person", who could
approach the Tribunal.
xxx xxx xxx
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."
5. Learned counsel for petitioner is unable to point out any
extraordinary and exceptional circumstance which calls for interference by this
Court. All pleas and arguments raised before us are very well within the realm
of consideration by appropriate Forum as provided.
6. Accordingly, this writ petition is dismissed with liberty to
petitioner to avail remedy(ies) as may be available to her in accordance with
law.
7. There is no expression of opinion on the merits of matter.
(LISA GILL)
JUDGE
(SUKHVINDER KAUR)
October 19, 2024 JUDGE
Rts
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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