1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 704 of 2022 1 - Nohar Singh Sonwani S/o Shri Kripal Singh Sonwani Aged About 61 Years R/o Near Gurukul School Shiv Nagar, Durg, Tahsil And District Durg, Chhattisgarh. Pin- 491001, District : Durg, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through District Magistrate Durg, District Durg, Chhattisgarh., District : Durg, Chhattisgarh 2 - Chhattisgarh Rajya Sahkari Bank Maryadit Through It's Authorised Officer, Head Office Sahkar Bhavan Plot No. 76, Sector-24, Nawa Raipur, Atal Nagar, Tahsil And District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. Prabhat Saxena, Advocate For State : Mr. Santosh Bharat, Panel Lawyer For Resp. No. 2 : Mr. Jitendra Shrivastava, Advocate SB- Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board 01/05/2025 1. The petitioner has filed this writ petition seeking following reliefs :- “(i) The petitioner above named most humbly prays to this Hon'ble court to allow this writ petition and set a side the order dated 19/01/22 (Annexure P/1) passed by the Respondent No. 1. (ii) The Hon'ble court may call the entire records of the case as well as the records of the housing loan sanctioned by the respondent Bank. (iii) Any other relief, which may suitable in the facts and circumstances of the case along with cost of this petition, may also be allowed.” Digitally signed by SHAYNA KADRI 2 2. Facts of the case, in a nutshell are that the petitioner is a State Government employee, serving as Block Education Officer at Raipur. He borrowed Rs. 13 lakhs on 18/06/2005 and Rs. 10 lakhs on 08/12/2014 (total Rs. 23 lakhs) as a housing loan from C.G. Rajya Sahkari Bank Maryadit (respondent no. 2). He deposited sale deed documents of his 2000 sq. ft. house at Mauja Shivnagar, Tah. & Distt. Durg as loan security. Due to personal issues, he defaulted on EMI payments. As of 24/08/2018, the outstanding loan amount was Rs. 18,64,030/-; the demand notice was not received by the petitioner or his family. Respondent no. 2 filed a case under Section 14 of the SARFAESI Act before the District Magistrate, Durg and hearings were scheduled between 05/03/2021 and 20/12/2021 but were delayed due to COVID-19. On 09/01/2022, the District Magistrate ordered attachment of the petitioner’s 2000 sq. ft. property at Mauja Shivnagar. 3. Learned counsel for the petitioner submits that the present petition challenges the impugned order passed by respondent No.1 as being wholly arbitrary, illegal, and passed in gross violation of the principles of natural justice, rendering the entire proceedings null and void in the eyes of law. The Petitioner was neither served with any notice of demand nor with any documents related to the proceedings before Respondent No.1. The order has been passed ex parte and without affording the petitioner any opportunity of hearing, in direct violation of Article 14 and Article 21 of the Constitution of India, as well as principles enshrined in natural justice. The Petitioner has not violated any provision of the relevant Acts, Rules or Regulations, and no justifiable reason exists to proceed with attachment of his property. The arbitrary action taken against him is without jurisdiction and ultra vires 3 the authority of Respondent No.1. It is evident from the record, including the order sheet (Annexure P/3), that no proper service of notice was effected upon the petitioner. The petitioner was in judicial custody during the pendency of the proceedings, a fact which was well within the knowledge of the respondents. The wife of the petitioner, who is uneducated and hails from a rural background, had appeared and sought time, which was acknowledged. Yet, the impugned order was passed behind the back of the petitioner on 19.01.2022 without any further intimation. The Petitioner is the sole earning member of his family, and the default in loan repayment occurred due to his incarceration and personal difficulties, which were bonafide in nature. This temporary setback was beyond the Petitioner’s control and cannot be a basis for penal actions without due process. Loan granted to the petitioner by respondent No.2 has been misrepresented in records. The Petitioner received the sanctioned loan in three installments of Rs. 5 lakhs, Rs. 1 lakh, and Rs. 7 lakhs at different times. However, the respondent Bank has erroneously charged interest as if the entire amount of Rs. 13 lakhs was disbursed on a single date, thereby inflating the due amount unjustly. As per the loan records, the Petitioner has already repaid significant amounts totaling Rs. 8,58,131 and Rs. 5,24,524 (Annexures P/5 & P/6), respectively. The actual outstanding amount is substantially lower than what has been projected by the Respondent Bank. After his release, the petitioner made earnest efforts to approach the Bank for reconciliation and repayment, but the Bank officials failed to provide the necessary cooperation and even denied issuance of updated bank statements. The Petitioner and his family suffered immense hardship due to his wrongful implication in a criminal 4 case, his incarceration, and the outbreak of the COVID-19 pandemic. These exceptional circumstances severely impacted his ability to meet financial obligations temporarily. No statutory notice under the relevant laws and no opportunity of hearing was provided to the Petitioner before taking coercive steps, such as the proposed attachment of his property. Such action is vitiated by non-compliance of mandatory legal procedures. The Petitioner, in utmost good faith, is willing to settle the dues and requests this Hon’ble Court to direct the Respondents to grant him a reasonable time frame and consider the benefit of interest waiver as per the policy reliefs announced by the Government during the COVID-19 period. It is contention of learned counsel for the petitioner that this Hon’ble Court may be pleased to quash and set aside the impugned order dated 19.01.2022 passed by respondent No.1; direct the respondents to provide a proper opportunity of hearing to the petitioner and restrain the respondents from taking any coercive steps against the petitioner including attachment of property. 4. Learned counsel for the respondents No. 3 submits that the present writ petition has been preferred by the petitioner seeking to set aside the order dated 19/01/2022 passed by the respondent No.1, which is a well-reasoned and speaking order passed after due compliance of the applicable legal procedure. At the outset, it is submitted that the petitioner has approached this Hon’ble Court with unclean hands and has deliberately suppressed material facts. The grounds raised in the petition, particularly relating to lack of opportunity of hearing and personal difficulties owing to COVID-19 pandemic and incarceration, are factually incorrect and misleading. It is submitted that the petitioner was issued a demand notice dated 24/08/2018 by respondent No.2 to 5 clear the outstanding dues of Rs. 18,64,030/- along with interest. Despite repeated notices and opportunities, the petitioner failed to repay the loan amount, thereby necessitating further proceedings in accordance with law. During the proceedings before the District Magistrate, Durg, the wife of the petitioner repeatedly appeared and sought adjournments on the ground of unavailability of the petitioner. The District Magistrate, in order to provide ample opportunity, adjourned the matter multiple times. However, due to non-cooperation and absence of the petitioner, the matter was rightly proceeded ex parte. The action under Section 13(4) of the SARFAESI Act, 2002 was duly published in the newspapers, clearly notifying the petitioner of the possession proceedings fixed on 24/12/2020. Even after such publication, no repayment was made by the petitioner. Notably, the petitioner had already been released from jail on 13/01/2019 and had sufficient time thereafter to comply with the obligations, but failed to do so. The order passed by the District Magistrate, Durg, is legal, justified and in accordance with law. The said order facilitated handing over of possession to the answering respondent, which was essential for recovery under the SARFAESI Act. There exists no infirmity in the order to warrant interference by this Hon’ble Court. With regard to the plea of financial hardship and COVID-19 pandemic, it is submitted that the petitioner is a Government employee serving as Block Education Officer and was in receipt of regular salary during the pandemic. Thus, he cannot be permitted to rely on this ground to avoid his lawful obligations. Contrary to the contentions of the petitioner, only a partial amount of Rs. 5.50 lakhs has been deposited till date, spread over several months, and the same does not constitute compliance with the 6 directions or sufficient repayment towards the loan liability. The petitioner has also failed to comply with the interim order dated 08/02/2022 passed by this Hon’ble Court and has obtained the same by misrepresenting and suppressing material facts. It is further submitted that the writ petition is not maintainable in view of the availability of alternative efficacious remedy under the Recovery of Debts and Bankruptcy Act before the jurisdictional Debts Recovery Tribunal (DRT), which is functional as on date. 5. I have heard learned counsel for the parties and also perused the documents enclosed along with the writ petition. 6. Admittedly, the petitioner availed two housing loans amounting to Rs. 23 lakhs from respondent No. 2 – C.G. Rajya Sahkari Bank Maryadit – and secured the same by mortgaging a house property situated at Mauja Shivnagar, District Durg. It is an admitted fact that the petitioner defaulted in repayment of loan installments, resulting in outstanding dues of Rs. 18,64,030/- as on 24/08/2018. Pursuant to default, proceedings under the SARFAESI Act were initiated by the Bank. 7. This Court is not inclined to enter into disputed questions of fact regarding the service of notices, the calculation of outstanding loan amount, or the conduct of the petitioner during the proceedings under the SARFAESI Act, which require detailed examination of evidence and records. Such matters are best adjudicated by the appropriate forum under the statute. 8. The Hon’ble Supreme Court has consistently held that when an effective alternative remedy exists, particularly under a special statute like the SARFAESI Act, the writ jurisdiction under Article 226 should not 7 ordinarily be invoked (see United Bank of India v. Satyawati Tondon, reported in (2010) 8 SCC 110). 9. In view of the above, this Court finds no ground to interfere with the impugned order dated 19/01/2022 passed by respondent No.1. However, liberty is reserved with the petitioner to avail the remedy available to him under law by approaching the jurisdictional Debts Recovery Tribunal. 10. Accordingly, the writ petition stands dismissed. Sd/- (Amitendra Kishore Prasad) Shayna JUDGE