Bombay High Court
Gurpreet Singh Alagh vs Housing Development Finance ... on 18 November, 2021
Bench: G.S. Patel, Madhav J. Jamdar
907-OSWPL-23912-2021 WITH IPAL-26495-2021 IN WPL-23912-2021.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 23912 OF 2021
Housing Development Finance Corporation Ltd ...Petitioners
(HDFC Ltd)
Versus
Gurpreet Singh Alagh & Anr ...Respondents
WITH
IN PERSON APPLICATION (L) NO. 26495 OF 2021
IN
WRIT PETITION (L) NO. 23912 OF 2021
Gurpreet Singh Alagh ...Petitioner
Versus
Housing Development Finance Corporation Ltd ...Respondents
(HDFC Ltd)
Mr Prathamesh Kamat, with Shreesh Oak & Vinayak Palande, i/b
SC Legal, for the Petitioners.
Mr Gurpreet Singh Alagh, Respondent No.1, present-in-person.
Mr AM Saraogi, for Respondent No. 2.
CORAM G.S. Patel &
ASHWINI Madhav J. Jamdar, JJ.
HULGOJI GAJAKOSH DATED: 18th November 2021 Digitally signed PC:-
by ASHWINI HULGOJI GAJAKOSH Date: 2021.11.20 11:52:21 +0530 Page 1 of 418th November 2021 907-OSWPL-23912-2021 WITH IPAL-26495-2021 IN WPL-23912-2021.DOC
1. When the matter was called out, the 1st Respondent sought leave to appear pro se or in person. We permitted that but, at the very beginning of the hearing, pointed out that the questions raised in this Writ Petition are extremely technical: they pertain to the jurisdiction of the Debt Recovery Tribunal, an interpretation of provisions of the SARFAESI Act, and the doctrine of stare decisis.
The 1st Respondent insisted that he was more than capable of addressing all these questions.
2. The matter was heard for almost thirty minutes, during which the 1st Respondent persisted in attempting to make submissions unrelated to issues at hand, and which we have noted earlier. These evidently had to be addressed first before we entertained any submissions on merits.
3. Finding no cogent answer, we began pronouncing judgement in open Court on the Writ Petition. It was only then that the 1st Respondent sought time to engage an Advocate. He also said that he cannot afford an Advocate. About the veracity of this -- whether or not he has the means to engage an advocate -- we have no material before us one way or the other. However, we permit the 1st Respondent to engage an Advocate. If he cannot afford one, an Advocate will be provided to him by the Legal Services Authority, whom he may approach.
4. We note that though there is a statutory appeal to the DRAT, the appellate tribunal is not functioning as no appointment has been made. Hence, we are compelled to entertain the Petition.
Page 2 of 418th November 2021 907-OSWPL-23912-2021 WITH IPAL-26495-2021 IN WPL-23912-2021.DOC
5. Since arguable questions arise, Rule. Rule returnable on 3rd December 2021.
6. There will also have to be a stay of the impugned judgement dated 19th July 2021 of the DRT-I, Mumbai.
7. The reason for us granting the stay is that prima facie is apparent to us that the Debt Recovery Tribunal has no jurisdiction whatsoever to decide a claim on merits outside the frame of Section 17 of the SARFAESI Act at the instance of the borrower. The issue is no longer res integra. It has been decided by a division bench of this Court (SB Shukre and AG Gharote, JJ) in Bank of Baroda, Khamgaon vs Gopal Shriram Panda and Ors.1 That decision holds inter alia that a borrower may approach the DRT only on the limited aspect of the measures taken by the lender under the SARFAESI Act. That decision binds us, being a decision of a Bench of coordinate strength of this very High Court.
8. By the impugned judgement, the presiding member of the Debt Recovery Tribunal, when confronted with preliminary objections as to maintainability (apart from limitation), said that since the matter was being finally argued the preliminary objections did not survive. This finding cannot be sustained. The impugned judgement also does not address itself to the jurisdictional limitations under Section 17 of the SARFAESI Act at all. Instead, it purports to decide the quantum of debt repayable by the borrower
-- i.e., not just the measures taken -- and goes so far as to 1 AIR OnLine 2021 Bom 1070 Page 3 of 4 18th November 2021 907-OSWPL-23912-2021 WITH IPAL-26495-2021 IN WPL-23912-2021.DOC completely wipe out the interest that was contractually payable under the debt in question. Whether this can or should be done is one thing. But whether the Debt Recovery Tribunal has the inherent jurisdiction to make such an order is extremely doubtful. This is of course only a prima facie view. It is for this reason that we stayed the impugned judgment and order of the Debt Recovery Tribunal.
9. Affidavit in Reply is to be filed and served on or before 29th November 2021. No Rejoinder without leave of the Court.
10. List the matter high on board on 3rd December 2021 for hearing and final disposal.
11. All concerned will act on production of a digitally signed copy of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
Page 4 of 4
18th November 2021