JUDGMENT

Mrs. Lisa Gill, J. (Oral)

Challenge in this writ petition is to declaration of loan account of the petitioner as Non Performing Asset (NPA), besides notice dated 31.07.2019, under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') as well as notice dated 05.02.2020, Annexure P-2 and notice dated 04.08.2022, Annexure P-4 and further proceedings taken under the SARFAESI Act pursuant thereto by the respondent-Financial Institution against the petitioner.

2. We heard learned counsel for the parties and went through the file as well as the documents presented in Court.

3. It is submitted that petitioner availed housing loan facility to the tune of Rs. 2,26,37,831/- on 08.05.2018, however due to some temporary deficiency in the account, it was declared NPA on 01.02.2019. Notice under Section 13 (2) of the SARFAESI Act was issued by Dewan Housing Finance Limited (DHFL) (Now Piramal Capital and Housing Finance Limited). Possession notice was issued on 05.02.2020, allegedly in violation of Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002 (for short 'the Rules'). Insolvency proceedings were initiated on an application by Reserve Bank of India (RBI) in its capacity as Appropriate Regulator against DHFL under the Insolvency and Bankruptcy Code, 2016 (for short 'Insolvency Code') read with Rules 5 and 6 of the Insolvency and Bankruptcy (Insolvency and Liquidation Proceedings of Financial Service Providers and Application to Adjudicating Authority), Rules, 2019 (for short 2019 Rules). Vide order dated 03.12.2019, passed by the National Company Law Tribunal, Mumbai Bench (NCLT), moratorium as defined under Section 14 of the Insolvency Code, was directed to commence with effect from the date of application i.e., 29.11.2019.

4. Learned counsel for the petitioner vehemently argued that once insolvency proceedings had commenced and moratorium was imposed vide order dated 03.12.2019, no proceedings qua the petitioner could have been initiated by DHFL or its authorized officers as the company was no longer in existence. Therefore, any proceedings undertaken by DHFL under the SARFAESI Act are absolutely illegal and arbitrary. It is contended that notice issued on 05.02.2020, Annexure P-2 and thereafter filing of application under Section 14 of the SARFAESI Act in the name of DHFL on 15.06.2021 on the basis of which order dated 04.08.2022 was passed by respondent no.2 is unsustainable. The Magistrate could not have passed the order under Section 14 of the SARFAESI Act on 04.08.2022 in favour of the DHFL. It is thus prayed that this writ petition be allowed.

5. Though, no written statement has been filed, learned counsel for respondents no.3 and 4 while repelling arguments raised on behalf of the petitioner vehemently argued that this writ petition itself is not maintainable as respondent no.4 is a private Non Banking Financial/Housing Institution. Moreover, petitioner has an efficacious alternate remedy to approach the Debt Recovery Tribunal for redressal of his grievance rather than approaching this Court by way of the present writ petition. It is further submitted that NCLT, Mumbai, had doubtlessly admitted the petition filed by the RBI against DHFL under Section 226 read with Section 39 (2) (2K) of the Insolvency Code and Rules 5 and 6 of the 2019 Rules. Reference is made to para 7.4 of order dated 03.12.2019 passed by the NCLT, Mumbai, wherein it is directed that 'on commencement of "Moratorium" the institution of any Suit or continuation of proceedings or execution of any decree against the Financia