Himachal Pradesh High Court
M/S Vikas Mushroom Farm And Anr vs Authorized Officer on 17 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 8026 of 2022 Date of decision: 17.08.2023 .
M/s Vikas Mushroom Farm and Anr. ...Petitioner Versus Authorized Officer, State Bank Of India & Ors.
...Respondents Coram of The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? No. rt For the Petitioner : Mr. Anirudh Sharma, Advocate.
For the Respondents : Mr. Arvind Sharma, Advocate, for respondents No. 1 and 2.
Mr. Balram Sharma, Dy. SGI, for respondent No. 4.
Tarlok Singh Chauhan, Judge.
The instant petition has been filed for grant of the following substantive reliefs:-
a) Issue a Writ in the nature of Mandamus directing the respondent-Bank to constitute the designated committee in terms of clause 3.3 and refer the case of the petitioner MSME under stress for suitable corrective action plan since it is incumbent upon the respondent bank before classifying the MSME Account as NPA as per RBI guidelines "Frame Work For Revival and Rehabilitation for MICRO, Small and Medium Enterprises (MSMEs)" issue vide letter dated 17.03.2016, which is binding upon the respondent bank in terms of Section 21 & 35A of the Banking Regulation Act, 1949 and further to set-aside all the pre and post steps taken by the respondent bank against the ::: Downloaded on - 17/08/2023 20:33:31 :::CIS 2 petitioners without adhering to RBI guidelines dated 17.03.2016 being illegal, arbitrary, discriminatory, lacking transparency, without jurisdiction, in sheer violation of fundamental rights enshrined under .
Articles 14, 19 and 21 of the Constitution of India and against the principles of natural justice, illegal and arbitrary and to provide all the benefit of incremental support under Emergency Credit Line Guarantee Scheme (ECLGS) launched by Government as relief for MSMEs due to Covid-19 Pandemic.
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b) Issue a Writ in the nature of prohibition seeking a direction to restrain the respondent-Bank from taking actual physical possession of the properties detailed in rt Schedule 'C' of notice dated 30.06.2022 and possession Notice dated 09.09.2022 and further restraining from taking any coercive action includes putting the said property to sale.
2. The relief as claimed cannot be granted by this Court in exercise of its extraordinary writ jurisdiction, as has been repeatedly held by this Court in a number of decisions rendered by Division Bench of this Court in CWP No. 4831 of 2023, titled M/s Kartik Food vs. State of H.P. & Anr., decided on 01.08.2023, CWP No.4538 of 2023, titled M/s Neelkanth Yarn vs. Punjab National Bank & Ors., decided on 02.08.2023 and CWP No. 5045 of 2023, titled M/s Dynamic Sales vs. District Magistrate, Solan & Ors., decided on 03.08.2023, wherein the Court has held that the writ petition regarding any of the matter which is covered by the SARFEASI Act would not be maintainable and the same would be maintainable before the DRT. It has further been held that the said DRT can go into the aspect of classifying of the ::: Downloaded on - 17/08/2023 20:33:31 :::CIS 3 account of the petitioner as NPA and also whether the RBI guidelines have been violated on the aspect leading to declaring of the account as NPA.
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3. It shall be apt to produce the relevant observations as contained in para 27 to 29 of the judgment rendered in CWP No. 4538 of 2023, titled M/s Neelkant Yarn vs. Punjab National Bank & Ors., decided on of 02.08.2023, which read as under:-
"27 From the statutory scheme and decisions noted here-in-above, it is clear that this Court, in exercise of rt its jurisdiction, cannot go into the decision of respondent-bank in classifying the petitioner's account as NPA. If the respondent-bank proceeds further and reaches Section 13(4) of the SARFAESI Act stage, the petitioner-firm can file application under Section 17 of the SARFAESI Act. The DRT can go into the aspect of classifying the account as NPA and also whether RBI guidelines have been violated on any aspect leading to declaring the account as NPA and taking recourse under the SARFAESI Act.
28. It has also been repeatedly held that the aspect of classifying an account as NPA is not justiciable in exercise of power of judicial review under Article 226 of the Constitution.
29. We are, therefore, of the opinion that the instant petition is not maintainable and is accordingly dismissed leaving open to the petitioner-firm to avail remedy under Section 17 of the SARFAESI Act as and when Section 13(4) thereof is invoked by the respondent-Bank. However, it is made clear that we have not expressed any opinion on the merits of the case and all issues are left open to be urged before the competent authority. Pending application(s), if any, also ::: Downloaded on - 17/08/2023 20:33:31 :::CIS 4 stands disposed of. The parties are left to bear their own costs."
4. In the given facts and circumstances of the case, .
we are of the view that the instant petition is not maintainable and is accordingly dismissed, leaving open to the petitioner-
firm to raise all points before DRT. However, it is made clear that we have not expressed any opinion on the merits of the of case and all issues are left open to be urged before the competent authority. Leaving the parties to bear their own costs.
rt Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge.
(Ranjan Sharma) 17.08.2023 Judge.
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