Allahabad High Court
Shyam Sundar Keshri vs State Of U.P. And 5 Others on 16 February, 2023
Bench: Mahesh Chandra Tripathi, Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- WRIT - C No. - 40180 of 2022
Petitioner :- Shyam Sundar Keshri
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Amit Kumar Tripathi,Akash Kishan,Anil Kumar Gupta
Counsel for Respondent :- C.S.C.,Anadi Krishna Narayana,Arun Prakash
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Vivek Kumar Singh,J.
Heard learned counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1 to 4, Sri Anadi Krishna Narayana, learned Counsel for the respondent No. 5 and Sri Arun Prakash, learned Counsel for the respondent No. 6 and perused the record.
Shyam Sundar Keshri is before this Court with following principal reliefs:-
"i. Issue a writ, order or direction in the nature of certiorari for quashing the order dated 23.05.2022 passed by respondent no. 3 (Annexure-1 to the writ petition)
ii.Issue a writ, order or direction in the nature of certiorari for quashing the entire recovery proceeding initiated against the petitioner by the respondent No. 5 under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
iii. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to dispossess the petitioner from the mortgage property bearing Arazi No. 424M, area 928 sq. ft. situated at Mauza Chittupur Khas, Pargana Dehat Amanat, Tehsil and District Varanasi.
iv. Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 5 to accept the arrear of whole loan amount from the petitioner, which is due till date."
At the very outset, learned counsel appearing for the Bank has raised preliminary objection regarding the maintainability of the writ petition on two fold submissions, firstly that the SARFAESI Act is a self-contained Act and provides for alternate remedy under Section 17 of the SARFAESI Act, 2002 and the loan account in question has been declared as NPA, and secondly, the proceedings in question have already been finalized and the possession of the property has been handed over to the auction purchaser. It is submitted that the attempt of the petitioner bypassing provisions of Section 17 of the SARFAESI Act, 2002 and straightway approaching this Court, is against the judgments of Apex Court in United Bank of India Vs. Satyavati Tandon & Ors. reported in (2010) 8 SCC 110; Kanhaiya Lal Vs. State of Maharashtra reported in (2011) 2 SCC 782 and Phoenix ARC Private Limited Vs. Viswa Bharati Vidya Mandir and others reported in 2022 SCC online SC 44. He submitted that time and again it has been held by the Hon'ble Apex Court in catena of judgments that 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, the borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. The filing of the writ petitions by the borrowers before the High Court under Article-226 of the Constitution of India is an abuse of process of the Court.
In the facts of the present case, we find that in view of the decisions of the Apex Court, referred to as above, the petitioner has alternative remedy against the action initiated by the Bank under the SARFAESI Act.
We accordingly dismiss the writ petition with liberty to the petitioner to invoke the remedies provided in SARFAESI Act.
Order Date :- 16.2.2023
Jaswant
