SPA/175/2020
2021 Latest Caselaw 1205 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



                 SPECIAL APPEAL NO. 175 OF 2020



                         26TH MARCH, 2021

 Between:

 M/S Shyam Radios Railway Bazar Haldwani, District
 Nainital and others.                ...Appellants

 and


 Punjab National Bank and others.                       ...Respondents

Counsel for the : Mr. Xitij Kaushik, learned counsel.

 appellants

 Counsel for respondent : Mr. Siddhartha            Jain,   learned
 Nos.1 to 3/Bank.         counsel..

Counsel for respondent : Mr. J.C. Pandey, learned Brief Nos. 4 & 5. Holder for the State

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

For the sake of brevity and convenience, the party

shall be referred to as arrayed in the writ petition.

2. The appellants-writ petitioners are aggrieved by

the order dated 11.06.2021 passed by the learned Single

Judge in Writ Petition (M/S) No. 841 of 2020, whereby the

learned Single Judge has dismissed the writ petition filed

by the appellant-writ petitioner.

3. Briefly the facts of the case are that the

petitioners are proprietors of the firm in the name and

style of M/S Shyam Radios. For the purpose of running the

business, the writ petitioners had taken out certain credit

facilities from Punjab National Bank, respondent No.1. The

details of these credit facilities are reads as under:-

S.No. Facility Account No. Limit Balance Outstanding

1. ODIP 187200990000295 1,75,00,000 1,71,08,791

2. Cash 187200870000476 2,00,00,000 2,22,47,690 Credit

3. WCTL 187200IB99902086 2,96,62,000 3,05,05,352

4. FITL 187200IA00000022 16,00,000 16,41,141 Total 6,87,62,000 7,15,02,974

4. According to the petitioners, when the aforesaid

loans/credit limits were extended to them, certain

properties were mortgaged, as security with the bank. The

details of the said properties are as follows:

S.No.     Location of Property                       Owner
1.      Land and Building measuring     Shri Shyam Sunder        and
        805 Sq.Ft. at House No.         Sandeep Kumar
        19/62 (New No. 7/198) at
        Railway     Bazar Haldwani,
        District Nainital
2.      Land and Building measuring     Pradeep Kumar, Sandeep
        805 Sq.Ft. at House No.         Kumar and Sudhir Kumar
        7/156 (Old No. 7/136) at
        Railway     Bazar Haldwani,
        District Nainital
3.      Land and Building measuring     Pradeep Kumar, Sandeep



          840 Sq.Ft. at House No.           Kumar and Sudhir Kumar
          7/191 at Railway Bazar
          Haldwani, District Nainital
4.        Land and Building measuring       Smt. Saroj W/o Shri Shyam
          805 Sq.Ft. at House No. 81        Sunder
          (Old No. 7/194) at Railway
          Bazar    Haldwani,     District
          Nainital
5.        Land and Building of Hotel        Shyam Sunder and Shri
          Shyam at Municipal No. 7-99       Sandeep Kumar
          Ramlila Mohalla at Railway
          Bazar    Haldwani,     District
          Nainital

5. Moreover, according to the petitioners, they

borrowed a housing loan from the respondent-Bank. They

started paying the installment of the loan. However, due

to certain financial hardship, and personal family

problems, the petitioners defaulted in payment of

installment of loan amount. Therefore, the Bank issued

certain notices to the petitioners. The petitioners

requested the Bank to co-operate with them, and to

permit the repayment of loan amount in easy installments.

Despite the fact that petitioners have been making these

requests to the Bank since 2016, the Bank has not agreed

to such proposal. Instead, on 25.02.2020, the Bank issued

the notice to the petitioners under Section 13(2) of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act, 2002 (for short 'as

the SARFAESI Act'). Subsequently, on 27.05.2020, the

Bank has issued notices to the petitioners under Section

13(4) of the SARFAESI Act. Aggrieved by the same, the

petitioners filed a writ petition before the learned Single

Judge. However, by the impugned order dated

11.06.2020, the learned Single Judge has dismissed the

writ petition inter alia on the ground that the petitioners,

have an efficacious alternative remedy for challenging said

notices before the learned Debts Recovery Tribunal (for

short 'DRT'). Therefore, there is no reason for this Court to

exercise its writ jurisdiction. Hence, the present Special

Appeal.

6. Mr. Xitij Kaushik, the learned counsel for the

petitioners, submits that the petitioners had given

undertaking before this Court that they will negotiate with

the Bank. In pursuance of such undertaking, on

20.11.2020, the Bank had informed the petitioners that

the concrete proposals and the prospective buyers for the

petitioners' property have not been received by the Bank.

Therefore, the Bank had sought certain undertaking from

the petitioners and sought concrete proposals for selling

their properties to prospective buyers.

7. According to the learned counsel, the petitioners

had replied to the letter dated 28.11.2020 by submitting

four undertakings on 01.12.2020. Despite the fact that the

undertakings have been submitted by the petitioners, the

Bank is yet to approve the steps which are being taken by

the petitioners. Moreover, according to the learned

counsel, these aspects have not been noticed by the

learned Single Judge. Therefore, the impugned order

deserves to be set aside by this Court.

8. On the other hand, Mr. Siddhartha Jain, the

learned counsel for the respondent-Bank, submits that the

petitioners have defaulted since 2016 and have been

abusing the process of the Court and the process of law to

evade their responsibility of repaying the loan. The

undertakings given by the petitioners before this Court as

well as before the Bank are absolutely sham. Despite the

fact that the petitioners claim that they are willing to

repay the loan amount, but not a single penny has been

repaid to the Bank by the petitioners so far. According to

the undertaking dated 01.12.2020, the petitioners were

supposed to bring forth the prospective buyers and to

submit concrete plans for selling the four properties

mortgage with the Bank. But so far neither a concrete

buyer has been brought fourth, nor proposal for selling the

properties has been submitted. Moreover, even according

to the undertakings, the petitioners had admitted that if

they fail to repay the loan amount, the Bank shall be free

to take its action under the SARFAESI Act. Since, the

petitioners have failed to repay the loan amount, the Bank

is well justified to initiate the proceedings under Section

13(2) and 13(4) of the SARFAESI Act. Lastly, the learned

Single Judge is certainly justified that in case there is an

efficacious alternate remedy, the writ jurisdiction should

not be invoked by this Court. Therefore, the learned

counsel has supported the impugned order.

9. Heard learned counsel for the parties, and

examined the records, submitted by both the parties, and

perused the impugned order.

10. It is, indeed, trite to state that it is the legal and

moral duty of a borrower to repay the loan amount to the

Bank in time. A borrower cannot be permitted to abrogate

responsibilities towards the Bank. After all, the borrowers

having taken the money which belongs to the Public at

large. Admittedly, the petitioners have defaulted in paying

the loan amount ever since 2016. According to both the

learned counsels, the loan amount presently is about

`8,12,37,685/-.

11. According to the order-sheets of the learned

Single Bench, and the order sheets of this Bench, the

petitioners have been promising this Court that they will

negotiate with the respondent-Bank. Admittedly, by letter

dated 02.11.2020, the petitioners were asked to submit

and to bring forth the prospective buyers who are

interested to buy the four properties, which the petitioners

had mortgaged with the Bank. Moreover, a concrete plan

was to be submitted and the amount that the petitioners

would deposit after the sale of each property was to be

outlined. But according to the respondent-Bank, no such

steps have been taken. Merely undertakings have been

given on 01.12.2020.

12. A bare perusal of undertakings, which have been

submitted by the petitioners before this Court clearly

reveals that even the names of the proposed purchasers

are not mentioned. Moreover, the schedule for repayment

of the amount, and even the quantum of the amount have

not been mentioned anywhere. Most importantly,

according to these undertakings, the petitioners have

committed themselves that in case they were be fail in

repaying the loan amount, the Bank would be at liberty to

initiate the proceedings under the SARFAESI Act. Despite

the lapse of many months, the petitioners have not

implemented the undertakings given by them. Therefore,

the Bank is certainly justified in initiating the proceedings

under the SARFAESI Act.

13. It is, indeed, trite to state that once an

efficacious alternate remedy is provided by the law,

ordinarily the High Court would not exercise its writ

jurisdiction, the learned Single Judge is certainly justified

in observing that if the petitioners were aggrieved by the

notices issued under Section 13(2) and 13(4) of the

SARFAESI Act, the petitioners, they have an efficacious

alternate remedy of approaching the learned Debts

Recovery Tribunal.

14. Therefore, for the reasons stated above, this

Court does not find any illegality or perversity in the order

passed by the learned Single Judge. This appeal, being

devoid of any merit is, hereby, dismissed.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 26th March, 2021 Mamta/Neha