RAFEEQUE Vs. UNION OF INDIA

JUDGEMENT

(1.) The subject matter of the writ petition filed by the appellants, is the recovery proceedings initiated by the 2nd respondent-Bank against the residential house of the appellants under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act").

(2.) The undisputed fact is that the appellants availed of a housing loan from the respondent-Bank and constructed a residential building in the property owned by the appellants and subsequently default was committed in the loan account. The respondent-Bank hence, initiated proceedings under the SARFAESI Act for recovery of the arrears of loan, upon which the appellants challenged the proceedings initiated, before this Court. As is observed in the judgment of the learned Single Judge, the only question urged before the learned Single Judge was with respect to a portion of the property being sold off to discharge the liability and the learned Single Judge, hence, relegated the appellants to the Authorized Officer under Rule 8(5) of the Security Interest (Enforcement) Rules, 2002. The learned Single Judge also issued a consequential direction to the Authorized Officer to consider the claim of the appellants within a period of one month, till which time the coercive proceedings were also kept in abeyance. It was specifically observed that no other contentions were urged and the disposal of the writ petition was also without prejudice to the remedies of the appellants under Section 17 of the SARFAESI Act.

(3.) The learned counsel for the appellants however, would contend before us that he had specifically sought for a declaration that the amendments made to Section 31(g) of the SARFAESI Act by Act 30/2004 with effect from 29.12.2004, "excluding any homestead and the land appurtenant thereto" is unconstitutional under Article 300-A of the Constitution of India. The second relief also prayed for declaring Section 14 of the SARFAESI Act as unconstitutional. It is the contention of the learned counsel that the learned Single Judge committed a gross travesty of law in not considering the above prayers.