NDLI: Phoenix Arc Private Limited Vs. Vishwa Bharati Vidya Mandir & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	SARFAESI: Default in repayment of outstanding dues
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	SARFAESI: Default in repayment of outstanding dues – Accounts of borrowers/respondents classified as Non Performing Asset – Bank issued notice u/s. 13(2) – NPA account of the borrowers / respondents with respect to the credit facilities availed by them assigned by the Bank in favour of appellant – Borrowers failed to repay outstanding dues – Appellant issued letter intimating borrowers that they would proceed to take possession of the mortgaged properties after expiry of 15 days from the date of the said letter – Against the said communication/letter dated 13.08.2015, the borrowers/respondents filed writ petitions before the High Court on the ground that communication/letter dated 13.08.2015 was a possession notice under s.13(4) of the SARFAESI Act, which was against the Security Interest (Enforcement) Rules, 2002 – High Court entertained the writ petitions under Art.226 against the appellant and passed an interim ordered directing for maintaining status quo with regard to SARFAESI action (possession of secured assets) – In the instant appeals, case of the appellant was that communication dated 13.08.2015 cannot be said to be a notice under s.13(4) of the SARFAESI Act at all; that after the notice under s.13(2) of the SARFAESI Act was issued in the year 2013 and thereafter despite the Letter of Acceptance dated 27.02.2015, no further amount was paid, therefore, the borrowers were called upon to make the payment within two weeks failing which a further proceeding under s.13(4) of the SARFAESI Act was proposed and therefore, writ petitions against the proposed action under s.13(4) of the SARFAESI Act was not maintainable and/or entertainable at all – Held: In view of the statutory remedy available under s.17 of the SARFAESI Act, writ petitions against the notice under s.13(4) of the SARFAESI Act was not required to be entertained by the High Court – Therefore, High Court erred in entertaining the writ petitions against communication dated 13.08.2015 and also passing the ex-parte ad-interim orders directing to maintain the status quo with respect to possession of secured properties on the condition directing the borrowers to pay Rs. 1 crore only (in all Rs.3 crores in view of the subsequent orders passed by the High Court extending the exparte ad-interim order dated 26.08.2015) against the total dues of approximate Rs.117 crores – Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court – High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons – High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced – The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers – The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor – Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters.Writ jurisdiction: Writ petition against the private financial institution – appellant under Art.226 of the Constitution of India against the proposed action/actions under s.13(4) of the SARFAESI Act – Maintainability of – Held: Not maintainable – In the instant case, appellant proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor – Appellant as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities – During the course of a commercial transaction and under the contract, the bank/ appellant lent the money to the borrowers and therefore the said activity of the bank/appellant cannot be said to be as performing a public function which is normally expected to be performed by the State authorities – If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable – SARFAESI Act.
Judge	Hon'ble Mr. Justice Mukeshkumar Rasikbhai Shah
Neutral Citation	2022 INSC 44
Petitioner	Phoenix Arc Private Limited
Respondent	Vishwa Bharati Vidya Mandir & Ors.
SCR	[2022] 1 S.C.R. 950
Judgement Date	2022-02-12
Case Number	257-259

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