BHARAT LAL v. PUNJAB NATIONAL BANK HOUSING FINANCE LTD.
2009-08-28
PANKAJ MITHAL, S.P.MEHROTRA
body2009
DigiLaw.ai
JUDGMENT By the Court.—It appears that the petitioner took loan for housing purposes from the respondent No. 1-Punjab National Bank Housing Finance Limited, Varanasi. 2. The petitioner committed default in payment of regular instalments. Consequently, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 were initiated against the petitioner. 3. A Notice dated 19.1.2008 under Section 13 (2) of the aforesaid Act was issued to the petitioner. This was followed by a Possession Notice dated 14.10.2008 under Section 13 (4) of the said Act for taking possession of the property given as security for the aforesaid loan. 4. In order to get possession of the said property, the respondent No. 1-Bank moved an Application dated 13.3.2009 under Section 14 of the aforesaid Act whereupon the Additional District Magistrate (Finance and Revenue), Varanasi passed an Order dated 12.8.2009. Copy of the said Order dated 12.8.2009 has been filed as Annexure-1 to the Supplementary Affidavit filed on behalf of the petitioner. 5. By the Order dated 12.8.2009, it has, interalia, been directed that necessary Police assistance be provided for taking possession of the property given as security for the aforesaid loan. 6. It may be mentioned that on an earlier occasion also, the petitioner approached this Court in regard to the aforesaid loan by filing a Writ Petition being Civil Misc. Writ Petition No. 8212 of 2005. The said Writ Petition was disposed of by the Order dated 21.2.2005 (Annexure-4 to the Writ Petition) with the direction that in case, the petitioner would deposit Rs. 10,000/-, and make a representation within the period mentioned in the said Order, such representation would be decided within three months of the receipt of the same. 7. There is dispute between the parties as to whether the representation, pursuant to the said Order dated 21.2.2005, was decided or not. However, the said controversy is not relevant for the purposes of the present Writ Petition. 8. We have heard Sri R.K. Upadhaya, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent Nos. 3 and 4, and Sri S.K. Srivastava, learned counsel for the respondent Nos. 1 and 2, and perused the record. 9.
However, the said controversy is not relevant for the purposes of the present Writ Petition. 8. We have heard Sri R.K. Upadhaya, learned counsel for the petitioner, the learned Standing Counsel appearing for the respondent Nos. 3 and 4, and Sri S.K. Srivastava, learned counsel for the respondent Nos. 1 and 2, and perused the record. 9. From the above narration of the facts, it is evident that the measures under Section 13 (4) of the aforesaid Act have been taken against the petitioner by issuing notice for taking possession of the property given as security for the aforementioned loan. The proceedings under Section 14 of the said Act are being taken for executing such measures as are taken by the Secured Creditor under sub-section (4) of Section 13 of the said Act, and the Order dated 12.8.2009 has been passed in the proceedings under Section 14 of the said Act. 10. The proceedings under Section 14 of the aforesaid Act are in the nature of execution proceedings for executing any of the measures taken by the secured creditor under sub-section (4) of Section 13 of the said Act. 11. Sub-section (3) of Section 14 of the aforesaid Act provides that no act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of the said Section shall be called in question in any Court or before any Authority. 12. In view of this, the action taken under Section 14 of the aforesaid Act attains finality. 13. Section 17 of the aforesaid Act, interalia, provides that any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 of the said Act may make an Application/Appeal before the Debts Recovery Tribunal. 14. In view of the above, while it is not open to the petitioner to challenge the Order dated 12.8.2009 passed by the Additional District Magistrate (Finance and Revenue), Varanasi under Section 14 of the said Act by filing an Application/Appeal under Section 17 of the said Act., it is still open to the petitioner to file an Application/Appeal against the measures taken under sub-section (4) of Section 13 by issuing notice for taking possession of the property given as security for the said loan. 15.
15. In fact, as noted above, the provisions of Section 14 of the aforesaid Act are in the nature of execution proceedings for executing any of the measures taken under sub-section (4) of Section 13 of the said Act. The order passed under Section 14 is merely a consequential order. 16. In view of the above, we are of the opinion that the petitioner has an alternative remedy of filing Application/Appeal before the Debts Recovery Tribunal under Section 17 of the aforesaid Act against the measures taken against him under sub-section (4) of Section 13 of the said Act. 17. In view of the availability of alternative remedy to the petitioner, we are not inclined to exercise our writ jurisdiction under Article 226 of the Constitution of India. 18. The Writ Petition is liable to be dismissed on the ground of availability of alternative remedy to the petitioner, and the same is accordingly dismissed on the said ground. ————