Bharat Lal vs Punjab National Bank Housing Finance Ltd. and Others

It appears that the Petitioner took loan for housing purposes from the Respondent No. 1-Punjab National Bank Housing Finance Limited, Varanasi.

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.

A notice dated 19th January, 2008 u/s 13(2) of the aforesaid Act was issued to the Petitioner. This was followed by a Possession Notice dated 14th October, 2008 u/s 13(4) of the said Act for taking possession of the property given as security for the aforesaid loan.

In order to get possession of the said property, the Respondent No. 1-Bank moved an application dated 13th March, 2009 u/s 14 of the aforesaid Act whereupon the Additional District Magistrate (Finance and Revenue), Varanasi passed an Order dated 12th August, 2009. Copy of the said Order dated 12th August, 2009 has been filed as Annexure-1 to the Supplementary Affidavit filed on behalf of the Petitioner.

By the Order dated 12th August, 2009, it has, inter alia, been directed that necessary Police assistance be provided for taking possession of the property given as security for the aforesaid loan.

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 off by the Order dated 21st February, 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.

There is dispute between the parties as to whether the representation, pursuant to the said Order dated 21st February, 2005, was decided or not. However, the said controversy is not relevant for the purposes of the present writ petition.

We have heard Mr. R.K. Upadhyaya, learned Counsel for the Petitioner, the learned Standing Counsel appearing for the Respondent Nos. 3 and 4, and Mr. S.K. Srivastava, learned Counsel for the Respondent Nos. 1 and 2, and perused the record.

From the above narration of the facts, it is evident that the measures u/s 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 u/s 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 12th August, 2009 has been passed in the proceedings u/s 14 of the said Act.

The proceedings u/s 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.

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.

In view of this, the action taken u/s 14 of the aforesaid Act attains finality.

Section 17 of the aforesaid Act, inter alia, 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.

In view of the above, while it is not open to the Petitioner to challenge the Order dated 12th August, 2009 passed by the Additional District Magistrate (Finance and Revenue), Varanasi u/s 14 of the said Act by filing an application/appeal u/s 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.

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 u/s 14 is merely a consequential order.

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 u/s 17 of the aforesaid Act against the measures taken against him under Sub-section (4) of Section 13 of the said Act.

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.

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.