TaxTMI 
TaxTMI 
2022 (2) TMI 1235
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....shish 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 institutions challenging the notices issued either under Section 13(2) of the Securitisation And Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as "SARFAESI Act, 2002") or under Section 13(4) of the SARFAESI Act, 2002. 2. Counsel for the respondents raised a preliminary objection with regard to maintainability of these writ petitions as an alternative efficacious statutory remedy is available to the petitioners under the SARFAESI Act, 2002. 3. Counsel for the petitioners submitted that there is no factual dispute in these matters and the petitioners have filed these writ petitions as the respondent-financial institutions are not following the R.B.I. Guidelines. Learned counsel further submits that the respondent-bank/financial institutions are not obeying the guidelines of R.B.I. with regard to moratorium. Counsel further submits that there is no remedy available to them challenging the notices under Section 13(2) of the SA....
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....ding 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 first Respondent has the legislative competence to levy duty on the sale of electricity to an intermediary distributor in view of the decision of this Court in State of AP (supra). The question of whether the Appellant is liable to file returns Under Sections 6B(1) and 5A of the Act is directly related to the issue of whether the sale of electricity by the Appellant to BSEB falls under the charging provisions of Section 3(1). The questions raised by the Appellant can be adjudicated without delving into any factual dispute. Thus, the present matter is amenable to the writ jurisdiction of the High Court." 6. Counsel for the petitioners further relied upon the judgment passed by a Coordinate Bench of this court in the matter of Premier Printing Press & Ors. Vs. State of Rajasthan & Ors., S.B. Civil Writ Petition Nos.3677 and 3678 of 2015, decided on 23.02.2017, where in para No.25 it has been held as under:- "25. There are thus these seven well recognized exc....
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....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, including a lockdown. The co-ordinate Bench of this Court in the case of Velankani Information (supra), has elaborately dealt with the measures taken by the Government of India and the consequent actions of the RBI, including issuance of the press release dated 27.03.2020 outlining various development and regulatory policies to address the stress in the financial condition caused by N-COVID-19 so as to ease the financial stress. The co-ordinate Bench, having considered the rival contentions and noticing the RBI Circular dated 27.03.2020, in depth, held that the Circular dated 27.03.2020 is discretionary insofar as the power to grant moratorium or not by a Bank, however, it is mandatory for the bank to ensure the continuity of viable businesses, in that, the non-grant of a moratorium should not result in adversely affecting the survival and continuity of a viable business. 11. Similarly, the Delhi High Court in Anant Raj Ltd. (supra) dealt with ....
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.... (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 intention of RBI in issuing the Circular and policy is to protect a viable business from the onslaught of the global pandemic. On the other hand, if the petitioner is prevented from utilizing the lease rentals towards funding its business, the entire business of the petitioner-Company would collapse." 8. Learned counsel appearing on behalf of the respondents submitted that a complete mechanism has been provided under the SARFAESI Act, 2002 with regard to proposed actions to be taken against the borrowers when they failed to repay the loan amount. Counsel further submits that the writ petitions under Article 226 of the Constitution of India is not maintainable against the notices issued under Sections 13(2) & 13 (4) of the Act of 2002 as the statutory remedy of appeal is available under the SARFAESI Act, 2002 against both types of notices. 9. In support of the contentions, counsel for the respondents relied upon the judgment....
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....d 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. Umakanta Mohapatra and Ors. reported in (2019) 13 SCC 497 where in para Nos.2 & 3 it has been held as under:- "2. Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in State Bank of Travancore v. Mathew K.C., the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non- Performing Assets (NPAs). 3. The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows: ( SCC p.94, para 17) "17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v.....
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....dir 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 proposed action/actions Under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC 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/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC 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/ARC, borrower has to avail the remedy under the ....