ANIKET PRAKASH Vs UNION OF INDIA & ORS.
- Citation2024 SCC OnLine Del 6141
Ratio decidendi
The rule this decision rests on
A writ petition under Article 226 challenging the enforcement of a SARFAESI Act proceeding is not maintainable before the High Court where the petitioner has already approached the Debt Recovery Tribunal, which has passed a final order on the merits of the dispute; the petitioner's remedy lies in appeal to the Debt Recovery Appellate Tribunal rather than in writ jurisdiction.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Article 226 of the Constitution of India seeking issuance of directions in the nature of prohibition to restrain respondent No.3/Tata Capital Housing Finance Limited from taking any adverse action against the petitioner on the non-payment of the due EMIs1 for the subsequent months. 2.
Learned counsel for the respondent No.3 is present on the
advance notice and he has challenged the maintainability of the
1
Equal Monthly Installments
Signature Not Verified Digitally Signed By:PRAMOD W.P. (C) 11551/2024 KUMAR VATS Signing Date:23.08.2024 21:18:28
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present writ petition. He has referred to decisions in Shelly Lal v. UOI2; Upendra Choudhury v. Bulandshahar Development Authority3; and South Indian Bank Ltd. v. Naveen Mathew Philip4 3.
Shorn of unnecessary details, the petitioner took a flat in the
project to be brought out by respondent No.4/Oasis Realtech Private Limited (Builder) and home loan/finances were evidently provided by the respondent No.3 in terms of subvention scheme under Tripartite Agreement dated 15.03.2016. It appears that for the non-payment of the outstanding dues due to the respondent No.3, the latter instituted proceedings under SARFAESI Act5 for recovery of its dues, which was sought to be assailed by the petitioner being contrary to the decision of RERA6 , Greater Noida, Uttar Pradesh dated 01.12.2023. Hence, an application was initiated before the Debt Recovery Tribunal [“DRT”] inter alia assailing the arbitrary action of respondent No.3 to seek recovery of loan from the petitioner in contravention of deemed subvention payment plan vide allotment letter dated 18.02.2016 and Master Circular dated 01.07.2015 in connection with “Housing Finance, issued by the RBI”. 4.
It is admitted fact that DRT-II, Delhi vide order dated
18.06.2024 has dismissed the objections raised by the petitioner by passing detailed order and has allowed the respondent No.3 to take over the possession of the subject flat bearing No. Phoenix 1610, 16th 2
2021 SCC OnLine SC 222 (2022) 11 SCC 449 4 2023 SCC OnLine SC 435 5 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 6 Real Estate Regulatory Authority 3
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floor situated at Oasis Grandstand GH-01 TS 01 B, Sector 22 D, Yamuna Expressway, Gautam Budh Nagar (UP). 5.
Learned counsel for the petitioner has alluded to the directions
passed by the Supreme Court in the case of Himanshu Singh v. Union of India7 whereby the home buyers who have entered into “subvention plan scheme” with the builder & the NBFCs have been granted interim relief to the effect that no coercive action shall be taken against them including prosecution under Section 138 of the Negotiable Instruments Act, 1881. 6.
Learned counsel for the respondent No.1 has urged that auction
of the flat in question was scheduled today and no bids have been received, and therefore, the relief which has been claimed by the petitioner in the present writ petition has become infructuous insofar as seeking quashing of notice dated 22.08.2024 is concerned. Be that as it may, since the petitioner has already approached DRT, which has passed the order dated 18.06.2024 dismissing their IA No. 2949/2024, it would be appropriate that the petitioner may file an appeal and seek reliefs on the strength of directions dated 15.07.2024 passed by the Supreme Court. This approach is all the more necessitated since the possession of the subject flat has already been taking over by the respondent No.3 and same is sought to be auctioned. 7.
In view of the above the present writ petition is dismissed as
being not maintainable before this Court with liberty to the petitioner to approach the Debt Recovery Appellate Tribunal [“DRAT”] for
7
Special Leave to Appeal (C) No. 7649/2023 decided on 15.07.2024
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seeking appropriate reliefs. However, this shall be without prejudice to the rights and contentions of the parties. 8.
The pending application also stands disposed of.
DHARMESH SHARMA, J. AUGUST 22, 2024 Sadiq
Signature Not Verified Digitally Signed By:PRAMOD W.P. (C) 11551/2024 KUMAR VATS Signing Date:23.08.2024 21:18:28
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