Rajasthan High Court - Jaipur
M/S Shree Balaji Enterprises vs Authorized Officer, Bank Of Baroda on 14 February, 2022
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9054/2021
M/s Shree Balaji Enterprises, Through Proprietor Mr. Sanjay
Kumar Saini S/o Shri Nand Lal Saini, R/o Near Inderpura Bus
Stand, Udaipurwati, District Jhunjhunu (Raj.) 333307
----Petitioner
Versus
Authorized Officer, Bank Of Baroda, Branch Office At Udaipurwati
Ghoom Chakkar Ke Pass, District Jhunjhunu (Raj.) 333307
----Respondent
Connected With
S.B. Civil Writ Petition No. 9581/2021
Shiv Singh S/o Shri Babu Singh, Aged About 50 Years, R/o
Village Sunhera, Barsana, Tehsil Kaman, District Bharatpur.
----Petitioner
Versus
1. Punjab National Bank, Head Office Plot No. 4, Sector-
10, Dwarka New Delhi Through Managing Director And
Chief Executive Officer.
2. Authorized Officer, Punjab National Bank, Divisional
Office, Circle Sastra Centre, Bharatpur.
3. Branch Manager, Punjab National Bank, Branch Kaman,
District Bharatpur.
----Respondents
S.B. Civil Writ Petition No. 10378/2021
Smt. Sumanlata Sharma Wife Of Late Shri Ramnath Sharma,
Resident Of House No. 71/65, Mansarovar, Jaipur, Rajasthan.
----Petitioner
Versus
1. Uco Bank, Banipark, R.j. Square, Near Doodh Mandi,
Subhash Nagar, Jaipur-302016 Through Its Authorized
Officer.
2. Uco Bank, Zonal And Corporate Office At Second Floor,
Orbit Mall, Civil Lines, Ajmer Road, Jaipur-302006
Through Authorized Officer.
3. Reserve Bank Of India, Tonk Road, Rambagh, Jaipur
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Through Authorized Officer.
----Respondents
S.B. Civil Writ Petition No. 12206/2021
1. Bhagawan Dairy Proprietor Bhagwan Sahai, R/o Village
Charanwala, Pnawaliya, Sanganer, District Jaipur
(Rajasthan).
2. Bhagwan Sahai Balai S/o Shri Kalyan Sahai, R/o Village
Charanwala, Pnawaliya, Sanganer, District Jaipur
(Rajasthan)
3. Saroj Devi W/o Bhagwan Sahai, R/o Plot No. 68,
Balaiyao Ka Mohalla, Charanwala, Pnawaliya, Sanganer,
District Jaipur (Rajasthan).
4. Prabhulal Balai S/o Sh. Kalyan Balai, R/o Hargun Ki
Nangal, Charanwala, Pnawaliya, Sanganer, District
Jaipur (Rajasthan).
----Petitioners
Versus
A.u. Small Finance Bank Ltd., Through Its Branch Manager- 19-
A, Dhuleshwar Garden, Ajmer Road, Jaipur.
----Respondent
S.B. Civil Writ Petition No. 12232/2021
M/s Shakuntalam, Through Its Proprietor Shri Aman Nagewala
S/o Harish Nagewala, Age 36 Years R/o K 157, Kishan Nagar,
Shyam Nagar, Jaipur 302019
----Petitioner
Versus
Union Bank Of India, Through Its Authorized Officer, Jaipur Main
Branch, 101-110, First Floor, Anukampa Tower, Church Road, Mi
Road, Jaipur 302001
----Respondent
S.B. Civil Writ Petition No. 12821/2021
1. M/s Shri Shyam Printers, Through Its Proprietor Ram
Chandra Choudhary S/o Chittar Mal Jat Age 50
Corporate Office At Address C-22, Sudharshanpura
Industrial Area, 22 Godam, Jaipur, Rajasthan 302019
2. Ram Chandra Choudhary S/o Chittar Mal Jat, Aged
About 50 Years, Resident Of 21, Hathroi Bawari, Ajmer
Road, Jaipur, Rajasthan 302006
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3. Sanjay Singh Choudhary S/o Ram Chandra Choudhary,
Aged About 32 Years, Resident Of 21, Hathroi Bawari,
Ajmer Road, Jaipur, Rajasthan 302006
4. Mohani Choudhary W/o Sanjay Singh Choudhary, Aged
About 30 Years, Resident Of 21, Hathroi Bawari, Ajmer
Road, Jaipur, Rajasthan 302006
----Petitioners
Versus
1. Reserve Bank Of India, Through Its Authorized
Representative, Tonk Rd, Rambagh, Jaipur, Rajasthan
302052
2. Fullerton India Credit Company Limited, Through Its
Branch Manager Branch Office At First Floor, North And
South Wing, Saurabh Tower. Office No.
5,6,7,8,9,10,11,12. Plot No- C-2 Gautam Marg, Vaishali
Nagar, Jaipur, Rajasthan, 302021
3. Fullerton India Credit Company Limited, Through Its
Branch Manager Branch Office At Megh Towers, 3Rd
Floor, Old No. 307 New No. 165, Poonamalle High Road,
Maduravoyal, Chennai, Tamil Nadu, 600095
----Respondents
S.B. Civil Writ Petition No. 12825/2021
1. M/s Shri Shyam Printers, Through Its Proprietors Ram
Chandra Choudhary S/o Chittar Mal Jat Age 50 Resident
Of 21, Hathroi Bawari, Ajmer Road, Jaipur, Rajasthan
302006 Corporate Officer Address C-22,
Sudharshanpura Industrial Area, 22 Godam, Jaipur,
Rajasthan 302019
2. Ram Chandra Choudhary S/o Chittar Mal Jat, Aged
About 50 Years, Resident Of 21, Hathroi Bawari, Ajmer
Road, Jaipur, Rajasthan 302006
3. Sanjay Singh Choudhary S/o Ram Chandra Choudhary,
Aged About 32 Years, Resident Of 21, Hathroi Bawari,
Ajmer Road, Jaipur, Rajasthan 302006
----Petitioners
Versus
1. Reserve Bank Of India, Through Its Authorized
Representative, Tonk Rd, Rambagh, Jaipur, Rajasthan
302052
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2. Dewan Hosing Finance Corporation Limited, Through Its
Regional Processing Unit 302,5, Jaipur Tower, 3Rd Floor
Opp Air, Mi Rd, Jaipur, Rajasthan 302001 Through
Branch Manager.
3. Dewan Hosing Finance Corporation Limited, Through Its
Branch Manager, Branch Office Dhiraj Baug, Building A-
Ground And First Floor, Beside Axis Bank, Opp. Monalisa
Building, Agra Road, Hari Niwas Circle, Naupada, Thane
(West), Maharashtra 400602
----Respondents
S.B. Civil Writ Petition No. 13505/2021
1. Rajendra Agarwal Son Of Bhura Mal Agarwal, Aged
About 66 Years, Resident Of House No. 14/167 Shipra
Path Mansarovar, Jaipur Rajasthan. 302020
2. Sushma Rani Wife Of Rajendra Agarwal, Aged About 60
Years, Resident Of House No. 14/167 Shipra Path
Mansarover, Jaipur Rajasthan. 302020
3. Sanjay Agarwal Son Of Rajendra Agarwal, Aged About
41 Years, Resident Of House No. 14/167 Shipra Path
Mansarover, Jaipur Rajasthan. 302020
----Petitioners
Versus
1. The Union Bank Of India, 18 C. Ravinder Path Sri
Ganganagr, Through Bank Manager. Rajasthan 335001
2. Union Bank Of India, Regional Office Jaipur, Rajasthan
101 (A) 101 (B) And 102 Kisan Bhawan Tonk Road, Lal
Kothi, Jaipur, Rajasthan 302015
3. Union Bank Of India, 239, Vidhan Bhawan Marg,
Nariman Point Mumbai Through Chairman And
Managing Director Mumbai, Maharashtra.
----Respondents
S.B. Civil Writ Petition No. 15461/2021
1. Vishnu Kumar Gautam S/o Shri Kailash Chand Gautam,
Aged About 41 Years, R/o Flat No. S-2, Plot No. 1,
Viyanak Vihar, Dadudayal Nagar, Iscon Road,
Mansarovar, Jaipur. (Borrower)
2. Smt. Neelam Sharma W/o Shri Vishnu Kumar Gautam,
R/o Flat No. S-2, Plot No. 1, Viyanak Vihar, Dadudayal
Nagar, Iscon Road, Mansarovar, Jaipur. (Co-Borrower)
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----Petitioners
Versus
1. Punjab And Sind Bank, Branch Jagatpura, Jaipur
Through Its Branch Manager.
2. Punjab And Sind Bank, Zonal Office, 29, Sarthi Marg,
Vidyut Nagar, Jaipur Through Its Zonal Manger.
----Respondents
For Petitioner(s) : Mr. Ashish Davessar
Mr. Rohan Agarwal, Adv. on behalf of
Mr. J.K. Moolchandani
Mr. Peush Nag
Mr. Amit Ratnawat
Mr. Aditya Jain
Ms. Gyamlani Neha
Mr. Chandra Kumar
Mr. Mahesh Chand Gupta
Mr. Nehpal Yogi
Mr. Bhavya Golecha
For Respondent(s) : Mr. Gupta Sarthak
Mr. C.P. Sharma
Mr. Ram Naresh Vijay, Adv. through
V.C.
Mr. Kailash Chand Darji
Mr. Vineet Sharma, Adv. through V.C.
Mr. Umang Gupta
Mr. Aditya Khandelwal
Ms. Priyal Kothari
Mr. Ashish Gowalani
Mr. Dinesh Garg
Mr. Sarthak Gupta
Mr. Kailash Chand Darji
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
14/02/2022
1. These writ petitions have been filed by the petitioners
against the nationalised banks/private financial institutions
challenging the notices issued either under Section 13(2) of the
Securitisation And Reconstructions of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter to be
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referred as "SARFAESI Act, 2002") or under Section 13(4) of the
SARFAESI Act, 2002.
2. Counsel for the respondents raised a preliminary objection
with regard to maintainability of these writ petitions as an
alternative efficacious statutory remedy is available to the
petitioners under the SARFAESI Act, 2002.
3. Counsel for the petitioners submitted that there is no factual
dispute in these matters and the petitioners have filed these writ
petitions as the respondent-financial institutions are not following
the R.B.I. Guidelines. Learned counsel further submits that the
respondent-bank/financial institutions are not obeying the
guidelines of R.B.I. with regard to moratorium. Counsel further
submits that there is no remedy available to them challenging the
notices under Section 13(2) of the SARFAESI Act, 2002.
4. In support of their contentions, counsel for the petitioners
relied upon the judgment passed by the Bombay High Court in the
matter of Transcon Skycity Pvt. Ltd. and Ors. Vs. ICICI Bank
and Ors., Writ Petition LD-VC No.28 of 2020 decided on
11.04.2020 where in para 9 of 14 it has been held as under:-
"14. .............
...9. Having heard learned counsel
for the parties and having
considered their respective
submissions, I am of the view that
the protection sought to be availed
of by the plaintiffs by virtue of the
RBI circulars would clearly apply to
all amounts due after 1st March
2020. In the instant case, the plaintiffs
were liable to pay Rs. 1.71 crores as of
12th January 2020. There is no doubt
that defendant no. 1 has a vested right
to sell the pledged shares. The sale of
shares at this moment would appear to
be prompted by anxiety to recover the
amount of Rs. 1.71 crores that is
overdue from the plaintiffs. In view of
the willingness of the plaintiffs to
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regularize the account and considering
the fact that the RBI has clearly opined
that the moratorium can be granted for
three months on payment of all
installments, it would appear that it is
only the installments falling due
between 1st March 2020 and 31st May
2020 that are contemplated under the
Covid-19 Regulatory Package, as seen
from paragraph 2 of RBI Circular dated
27th March 2020, annexed at Exhibit-
DD to the plaint. The Press Release
dated 27th March 2020 on 'Statement
of Developmental and Regulatory
Policies' seems to suggest that
moratorium would apply in respect of
payment of installments of terms loans
outstanding "as of 1st March 2020".
That would seem to include even the
amounts due to the 1st defendant from
the plaintiffs in this suit but the
Statement of Developmental and
Regulatory Policies is only a Press
Release setting out the policies to
address stress in financial conditions
caused by Covid-19. They do not
constitute the directions to the banks."
5. Counsel for the petitioners further relied upon the judgment
passed by the Hon'ble Supreme Court in the matter of Magadh
Sugar & Energy Ltd. Vs. The State of Bihar and Ors., Civil
Appeal No.5728 of 2021, decided on 24.09.2021 where in para
24 it has been held as under:-
"24. The issues raised by the Appellant are
questions of law which require, upon a
comprehensive reading of the Bihar Electricity
Act, a determination of whether tax can be
levied on the supply of electricity by a power
generator (which also manufactures sugar)
supplying electricity to a distributor; and
whether the first Respondent has the
legislative competence to levy duty on the sale
of electricity to an intermediary distributor in
view of the decision of this Court in State of AP
(supra). The question of whether the Appellant
is liable to file returns Under Sections 6B(1)
and 5A of the Act is directly related to the
issue of whether the sale of electricity by the
Appellant to BSEB falls under the charging
provisions of Section 3(1). The questions
raised by the Appellant can be adjudicated
without delving into any factual dispute. Thus,
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the present matter is amenable to the writ
jurisdiction of the High Court."
6. Counsel for the petitioners further relied upon the judgment
passed by a Coordinate Bench of this court in the matter of
Premier Printing Press & Ors. Vs. State of Rajasthan & Ors.,
S.B. Civil Writ Petition Nos.3677 and 3678 of 2015, decided
on 23.02.2017, where in para No.25 it has been held as under:-
"25. There are thus these seven well
recognized exceptions to the rule of
alternative remedy, which can be culled out
from the afore discussed judgments of the
Supreme Court, firstly where the writ
petition has been filed for enforcement of
fundamental rights; secondly where there
has been violation of principle of natural
justice; thirdly where the order of
proceedings is wholly without jurisdiction;
fourthly where the vires of any Act is under
challenge; fifthly where availing of
alternative remedy subjects a person to
very lengthy proceedings and unnecessary
harassment; sixthly where the writ petition
can be entertained despite alternative
remedy if the question raised is purely
legal one, there being no dispute on facts
and seventhly, where State or its
intermediary in a contractual matter acts
against public good/interest unjustly,
unfairly and arbitrarily."
7. Reliance was also placed upon the judgment passed by the
Karnataka High Court in the matter of Subramanya
Construction and Development Company Limited Vs. Union
Bank of India Writ Petition No.6710 of 2020, decided on
05.08.2020 where in para 9, 10, 11, 12 & 13 it has been held as
under:-
"9. Adverting to the factual aspects, this Court
finds that the respondent-Bank is making
contradictory statements. On the one hand, it
is contended that the petitioner-Company was
overdue in paying instalments for the month of
January and February 2020 and therefore, it is
contended that as per the IRAC Guidelines of
the RBI, the petitioner's account is required to
be classified as Special Mention Account-2 and
in the normal course, if there was failure on
the part of the petitioner to pay instalment for
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the month of March 2020, its account would be
classified as Non-performing Asset (NPA), at
the beginning of April 2020. On the other
hand, it is contended that there is steady cash
flow in the escrow account of the Company.
The fact that the Bank has deducted the EMIs
is evidenced by a prayer made by the
petitioner to direct the respondent to release
all such amounts received by the respondent
as EMIs between the period 1st of March to
31st of May 2020.
10. As rightly submitted by the learned Senior
Counsel for the petitioner, this Court can take
judicial notice of the fact that the outbreak of
novel Coronavirus came to light during the fag
end of the year 2019, that is the reason why
the virus is named COVID- 19. The impact of
COVID-19 in the global market commenced
from January 2020. Having studied the spread
and impact of COVID-19, the Government of
India invoked the Disaster Management Act,
2005 and by order dated 24.03.2020
announced various measures, including a
lockdown. The co-ordinate Bench of this Court
in the case of Velankani Information (supra),
has elaborately dealt with the measures taken
by the Government of India and the
consequent actions of the RBI, including
issuance of the press release dated
27.03.2020 outlining various development and
regulatory policies to address the stress in the
financial condition caused by N-COVID-19 so
as to ease the financial stress. The co-ordinate
Bench, having considered the rival contentions
and noticing the RBI Circular dated
27.03.2020, in depth, held that the Circular
dated 27.03.2020 is discretionary insofar as
the power to grant moratorium or not by a
Bank, however, it is mandatory for the bank to
ensure the continuity of viable businesses, in
that, the non-grant of a moratorium should not
result in adversely affecting the survival and
continuity of a viable business.
11. Similarly, the Delhi High Court in Anant Raj
Ltd. (supra) dealt with the question as to
whether the benefit of moratorium announced
by RBI could be extended to an account which
was classified as Special Mention Account-1
(SMA-1) and Special Mention Account-2 (SMA-
2). Having regard to Clause-5 of the statement
of development regulatory policy dated
27.03.2020 and foot note-1 therein, it was
held that "reading of the Statement on
Development and Regulatory Policies issued by
RBI on 27th March 2020 along with Regulatory
Package issued on March 27, 2020 prima facie
shows that the intention of the RBI is to
maintain status quo as on 01.03.2020 with
regard to all the instalments payment for
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which had to be made post 01.03.2020 till
31.05.2020".
12. As regards classification of accounts, while
adverting to paragraphs-5 to 7 of the
Regulatory Package, it was held that it is the
intention of RBI to maintain status quo with
regard to the classification of accounts of the
borrowers as they existed as on 01.03.2020.
This Court is in respectful agreement with the
decisions of the co-ordinate Bench of this
Court in the case of Velankani Information
(supra) and Anant Raj Ltd. (supra) of the Delhi
High Court.
13 . In the light of the admitted fact that the
respondent-Bank has withdrawn the amounts
from the escrow account towards EMIs from
the month of January 2020 till 30.04.2020,
when an interim order was passed by this
Court, question of classifying the petitioner-
Company as NPA, would not arise. As noticed
by the co-ordinate Bench of this Court and the
Delhi High Court, the intention of RBI in
issuing the Circular and policy is to protect a
viable business from the adverse impact of N-
COVID-19. The petitioner-Company is in the
business of property development, agriculture
and allied activities, involving several
thousands of workers and employees. The
contention of the petitioner that the N-COVID-
19 pandemic has had an adverse impact on its
business and it is facing severe crunch of cash-
flow, cannot be ignored on the premise that
there is a steady flow of lease rentals into the
escrow account of the petitioner-Company. The
argument of the learned Counsel for the
respondent that the present case stands on a
different footing when compared to the case of
Velankani Information (supra) and therefore
the petitioner should not be given the benefit
of moratorium, cannot be accepted. The
petitioner in Velankani Information (supra) had
borrowed money through a consortium of
Banks. Merely because the petitioner herein
does not seem to have borrowed through a
consortium of Banks, it does not disentail him
from seeking the benefit of moratorium. As
rightly observed earlier, the intention of RBI in
issuing the Circular and policy is to protect a
viable business from the onslaught of the
global pandemic. On the other hand, if the
petitioner is prevented from utilizing the lease
rentals towards funding its business, the entire
business of the petitioner-Company would
collapse."
8. Learned counsel appearing on behalf of the respondents
submitted that a complete mechanism has been provided under
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the SARFAESI Act, 2002 with regard to proposed actions to be
taken against the borrowers when they failed to repay the loan
amount. Counsel further submits that the writ petitions under
Article 226 of the Constitution of India is not maintainable against
the notices issued under Sections 13(2) & 13 (4) of the Act of
2002 as the statutory remedy of appeal is available under the
SARFAESI Act, 2002 against both types of notices.
9. In support of the contentions, counsel for the respondents
relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Punjab National Bank and Ors. Vs. Imperial Gift House and Another reported in (2013) 14 SCC 622 where in paras 2, 3 & 4 it has been held as under:-
"2. By the impugned order, in effect and substance, the High Court has quashed notice issued by the bank under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [for short, "the Act"].
3. Upon receipt of notice, the respondents filed representation under Section 13(3)(A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court.
4.In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the bank."
10. Counsel for the respondents further relied upon the judgment passed by the Madras High Court in the matter of M.Sivanandam vs The Authorised Officer, State Bank of India decided on 19 December, 2016 reported in 2016 SCC Online Mad 32897 where in para Nos.2 & 3 it has been held as under:-
"2. Notice under Section 13(2) is only a demand made by the Bank and the Hon'ble (Downloaded on 16/02/2022 at 09:16:10 PM) (12 of 15) [CW-9054/2021] Supreme Court in Mardia Chemicals v. Union of India reported in AIR 2004 SC 2371 : 2004(4) SCC 311 has held that notice under Section 13(2) would not give rise to a cause to challenge. However, as per Section 13(3A) of the SARFAESI Act, 2002, if, on receipt of the notice under sub section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.
3. In the light of the above decision and the statutory provision, writ of certiorari, cannot be issued to quash the notice under Section 13(2) of the SARFAESI Act 2002.
11. Counsel for the respondents further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of ICICI Bank Ltd. and Ors. Vs. Umakanta Mohapatra and Ors. reported in (2019) 13 SCC 497 where in para Nos.2 & 3 it has been held as under:-
"2. Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in State Bank of Travancore v. Mathew K.C., the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non- Performing Assets (NPAs).
3. The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows: ( SCC p.94, para 17) (Downloaded on 16/02/2022 at 09:16:10 PM) (13 of 15) [CW-9054/2021] "17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd., observing:
( SCC p.463, para 32) '32 . When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.' "
12. Counsel for the respondents further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of C. Bright Vs. The District Collector and Ors. (2021) 2 SCC 392 where in para No.22 it has been held as under:-
"22 . Even though, this Court in United Bank of India v. Satyawati Tondon held that 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 will 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. Hindon Forge (P) Ltd. has held that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court Under Articles 226 or 227 of the Constitution of India without availing the alternative statutory (Downloaded on 16/02/2022 at 09:16:10 PM) (14 of 15) [CW-9054/2021] remedy. The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money."
13. Reliance was also placed upon the judgment passed by the Hon'ble Supreme Court in the matter of Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir and Ors., Civil Appeal Nos.257-259 of 2022, decided on 12.01.2022, where in para 12 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 (supra) and Ramesh Ahluwalia (supra) relied upon by the learned Counsel appearing on behalf (Downloaded on 16/02/2022 at 09:16:10 PM) (15 of 15) [CW-9054/2021] of the borrowers are not of any assistance to the borrowers"
14. Heard counsel for the parties and perused the record.
15. These writ petitions filed by the petitioners deserves to be dismissed for the reasons; firstly, the petitioners are having alternative efficacious statutory remedy under the SARFAESI Act, 2002; secondly, the guidelines issued by the R.B.I. can be very much looked into by the Debts Recovery Tribunal as well as by the banks while examining the reply if submitted by the petitioners against the notices served upon them and lastly in the facts and circumstances in view of the judgment passed by the Hon'ble Supreme Court in the matter of I.C.I.C.I. Bank Limited as well as the Pheonix India (both supra), I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
Hence, these writ petitions stand dismissed.
(INDERJEET SINGH),J Jyoti/32-40 (Downloaded on 16/02/2022 at 09:16:10 PM) Powered by TCPDF (www.tcpdf.org)