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TMI Blog2022 (2) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances in view of the judgment passed by the Hon'ble Supreme Court in the matter of I.C.I.C.I. Bank Limited as well as the Pheonix India (both supra), the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is not exercised. The writ petition is dismissed. - S.B. Civil Writ Petition No. 9054/2021, 9581/2021, 10378/2021, 12206/2021, 12232/2021, 12821/2021 , 12825/2021, 13505/2021 , 15461/2021 - - - Dated:- 14-2-2022 - HON'BLE MR. JUSTICE INDERJEET SINGH Order For the Petitioner : Mr. Ashish Davessar Mr. Rohan Agarwal, Adv. on behalf of Mr. J.K. Moolchandani Mr. Peush Nag Mr. Amit Ratnawat Mr. Aditya Jain Ms. Gyamlani Neha Mr. Chandra Kumar Mr. Mahesh Chand Gupta Mr. Nehpal Yogi Mr. Bhavya Golecha For the Respondent : Mr. Gupta Sarthak Mr. C.P. Sharma Mr. Ram Naresh Vijay, Adv. through V.C. Mr. Kailash Chand Darji Mr. Vineet Sharma, Adv. through V.C. Mr. Umang Gupta Mr. Aditya Khandelwal Ms. Priyal Kothari Mr. Ashish Gowalani Mr. Dinesh Garg Mr. Sarthak Gupta Mr. Kailash Chand Darji ORDER 1. These writ petitions have been filed by the petitioners against the nationalised banks/private financial instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexed at Exhibit- DD to the plaint. The Press Release dated 27th March 2020 on 'Statement of Developmental and Regulatory Policies' seems to suggest that moratorium would apply in respect of payment of installments of terms loans outstanding as of 1st March 2020 . That would seem to include even the amounts due to the 1st defendant from the plaintiffs in this suit but the Statement of Developmental and Regulatory Policies is only a Press Release setting out the policies to address stress in financial conditions caused by Covid-19. They do not constitute the directions to the banks. 5. Counsel for the petitioners further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Magadh Sugar Energy Ltd. Vs. The State of Bihar and Ors., Civil Appeal No.5728 of 2021, decided on 24.09.2021 where in para 24 it has been held as under:- 24. The issues raised by the Appellant are questions of law which require, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IRAC Guidelines of the RBI, the petitioner's account is required to be classified as Special Mention Account-2 and in the normal course, if there was failure on the part of the petitioner to pay instalment for the month of March 2020, its account would be classified as Non-performing Asset (NPA), at the beginning of April 2020. On the other hand, it is contended that there is steady cash flow in the escrow account of the Company. The fact that the Bank has deducted the EMIs is evidenced by a prayer made by the petitioner to direct the respondent to release all such amounts received by the respondent as EMIs between the period 1st of March to 31st of May 2020. 10. As rightly submitted by the learned Senior Counsel for the petitioner, this Court can take judicial notice of the fact that the outbreak of novel Coronavirus came to light during the fag end of the year 2019, that is the reason why the virus is named COVID- 19. The impact of COVID-19 in the global market commenced from January 2020. Having studied the spread and impact of COVID-19, the Government of India invoked the Disaster Management Act, 2005 and by order dated 24.03.2020 announced various measures, includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As noticed by the co-ordinate Bench of this Court and the Delhi High Court, the intention of RBI in issuing the Circular and policy is to protect a viable business from the adverse impact of N- COVID-19. The petitioner-Company is in the business of property development, agriculture and allied activities, involving several thousands of workers and employees. The contention of the petitioner that the N-COVID- 19 pandemic has had an adverse impact on its business and it is facing severe crunch of cash- flow, cannot be ignored on the premise that there is a steady flow of lease rentals into the escrow account of the petitioner-Company. The argument of the learned Counsel for the respondent that the present case stands on a different footing when compared to the case of Velankani Information (supra) and therefore the petitioner should not be given the benefit of moratorium, cannot be accepted. The petitioner in Velankani Information (supra) had borrowed money through a consortium of Banks. Merely because the petitioner herein does not seem to have borrowed through a consortium of Banks, it does not disentail him from seeking the benefit of moratorium. As rightly observed earlier, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not give rise to a cause to challenge. However, as per Section 13(3A) of the SARFAESI Act, 2002, if, on receipt of the notice under sub section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower: PROVIDED that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A. 3. In the light of the above decision and the statutory provision, writ of certiorari, cannot be issued to quash the notice under Section 13(2) of the SARFAESI Act 2002. 11. Counsel for the respondents further relied upon the judgment passed by the Hon'ble Supreme Court in the matter of ICICI Bank Ltd. and Ors. Vs. Umaka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court Under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. 13. Reliance was also placed upon the judgment passed by the Hon'ble Supreme Court in the matter of Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir and Ors., Civil Appeal Nos.257-259 of 2022, decided on 12.01.2022, where in para 12 it has been held as under:- 12. Even otherwise, it is required to be noted that a writ petition against the private financial institution-ARC-Appellant herein Under Article 226 of the Constitution of India against the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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