Mr. Nageshwar Rao S/O Rajshekhara ... vs Collector, Collector Office ...
2023 Latest Caselaw 2599 Bom

                                   1          4wp762.22.odt

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR

             CRIMINAL WRIT PETITION NO. 762/2022

1.   Mr. Nageshwar Rao S/o. Rajshekhara
     Rao Neti, aged 64 yrs., Occ. Rtd. Scientist,
     R/o. Swapnil Trisha Apartment (Navketan
     Co-operative Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.

2.   Mrs. Sumita Rao W/o. Nageshwar Rao Neti,
     Aged 56 yrs., Occ. Service, R/o. Swapnil
     Trisha Apartment (Navketan Co-operative
     Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.

3.   Mrs. Vandana Bhaskar Bajirao,
     aged 50 yrs., Occ. Service, R/o. Swapnil
     Trisha Apartment (Navketan Co-operative
     Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.

4.   Mrs. Sujata w/o. Suhaas Kulkarni,
     aged 57 yrs., Occ. House Wife,
     R/o. Swapnil Trisha Apartment (Navketan
     Co-operative Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.

5.   Mr. Yogesh Manohar Lokhande,
     aged 45 yrs., Occ. Pvt Job, R/o. Swapnil
     Trisha Apartment (Navketan Co-operative
     Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.

6.   Mr. Kamlesh Kishanchand Arya,
     about 38 yrs., Occ. Doctor,
     R/o. Swapnil Trisha Apartment (Navketan
     Co-operative Housing Society), Plot No.126-A,
     Buty Layout, Laxmi Nagar, Nagpur-440022.
                                                     PETITIONERS


                            VERSUS
                                                    2               4wp762.22.odt

1.      Collector, Collector Office,
        Civil Lines, Nagpur.

2.      Additional Collector, Collector Office,
        Civil Lines, Nagpur.

3.      Tehsildar, Nagpur having office
        At Akashwani Chowk, Civil Lines,
        Nagpur.

4.      State Bank of India, through General
        Manager/authorized officer, M.S.E.
        Hingana Branch, Plot No.X-43, MIDC
        Area, Nagpur-440016.

5.      M/s. Swapnil Promoters and
        Developers, Pvt Ltd, through authorized
        person Mr. Vivek Dattatray Deshpande,
        having office at 363, Swapnil Swaranand
        Apartment, 1-N.F.R. Mac Azad Road,
        Nagpur.

                                                                        RESPONDENTS
---------------------------------------------------------------------------------------------------
Mr. S.P. Bhandarkar, Advocate for petitioners.
Mr. H. D. Dubey, Additional Public Prosecutor for respondent Nos. 1 to
3.
Mr. M. Anilkumar, Advocate for respondent No. 4.
Mr. U.M. Aurangabadkar, Advocate for respondent No.5.



           CORAM                                         : VINAY JOSHI AND
                                                            MRS.VRUSHALI V. JOSHI JJ.

          JUDGMENT RESERVED ON                           : 18.11.2022
          JUDGMENT PRONOUNCED ON                         : 17.03.2023


JUDGMENT (PER VINAY JOSHI, J.)

Rule. Rule made returnable forthwith. Heard finally by

consent of learned counsel appearing for respective parties.

3 4wp762.22.odt

2. By this petition filed under Article 226 of the Constitution of

India, the petitioners seek to challenge the impugned communication

dated 07.09.2022 issued by respondent No. 3 Tehsildar and Executive

Magistrate in pursuance of Section 14 of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest

Act, 2002 ('SARFAESI Act').

3. The facts leading to the filing of the petition are as under:-

4. Petitioner Nos. 1 to 5 are flat purchasers, whilst respondent

No. 5 M/s. Swapnil Promoters and Developers Pvt. Ltd. is builder who

has developed and constructed apartment in the name and style as

Swapnil Trisha Apartment (Navketan Co-operative Housing Society),

situated at Plot No. 126-A, Buty Layout, Laxmi Nagar, Nagpur.

Petitioners have purchased respective residential flat from respondent

No. 5 Developer under registered agreement to sell and power of

attorney. Some of the petitioners have availed loan for purchasing

respective flats. On the basis of registered agreements, revenue entries

have been taken as well as the electric meters were obtained in their

name. Learned counsel for petitioners would submit that the petitioners

are bonafide purchasers for value and possession was delivered to them

on payment of valuable consideration.

4 4wp762.22.odt

5. It is petitioners' case that that the impugned communication

has been pasted on the respective flats by the respondent No. 3 Tehsildar

intending to take possession of subject flats. The said order was passed

in pursuance of Section 14 of the SARFAESI Act, on the ground that

respondent No. 5 Builder has failed to pay the outstanding loan availed

from respondent No. 4 Creditor Bank. According to the petitioners, the

authority has not followed the prescribed procedure for taking

possession in terms of Section 14 of the SARFAESI Act. Moreover, the

order has been passed in violation of the principles of natural justice, as

the petitioners have not been heard.

6. Respondent No. 4 Creditor Bank has resisted the petition vide

its reply dated 03.11.2022. At the inception, objection has been raised

to the maintainability of the writ petition on the premise that equally

efficacious remedy under Section 17 of the SARFAESI Act is available. It

is the case of respondent No. 4 Creditor Bank that, respondent No. 5

builder/borrower availed loan/credit facility from the Bank. The loan

was secured by executing equatable mortgage dated on 30.03.2015.

Secured interest within the meaning of Section 2(zf) of the SARFAESI

Act has been created in respect of the subject property, which became

secured assets within the meaning of Section 2(zc), in favour of secured

creditor (the Bank) within the meaning of Section 2(zd). It is the

contention of Bank that alleged agreements are not binding on the 5 4wp762.22.odt

secured creditor, as those have been executed during the subsistence of

mortgage.

7. Respondent No. 4 Bank contended that irrespective of

sufficient opportunity, the loan account of borrower was not regular and

became a non-performing asset ('NPA'). Since the borrower committed

default, the Bank has issued notice dated 30.01.2017 in terms of Section

13(2) of the SARFAESI Act, directing borrower to discharge the liability

within the stipulated period of 60 days. In response, though the

borrower has paid certain installments, however there was failure on

their part to comply demand notice. The Bank has taken symbolic

possession of the secured asset on 30.01.2018. The borrower has

approached to the Debt Recovery Tribunal ('DRT'), in which he was

directed to deposit certain sum in equal installments. The parties have

arrived at settlement, however as per terms recorded before the DRT, the

borrower failed to pay.

8. The Bank has approached to the District Magistrate in terms of

Section 14 of the SARFAESI Act for taking possession. On verifying the

claim of secured creditor, the District Magistrate has passed order dated

08.08.2022 directing to take possession of secured assets in terms of

Section 14(2) of the SARFAESI Act. The impugned communication

dated 07.09.2022 is mere an intimation that the possession shall be

taken in pursuance of the order of the District Magistrate dated 6 4wp762.22.odt

08.08.2022. It is also contended that the petition is not tenable as it

involves disputed question of facts. Moreover, the Bank being first

Mortgagee, all subsequent transfers are not sustainable in the eyes of

law.

9. Respondent No. 5 borrower also filed reply-affidavit. It is

contended that the respondent No. 5 has availed credit facility from

respondent No. 4 Bank in the year 2015. The credit facility was to the

tune of Rs. 17 crores. In order to secure the interest of creditor,

equitable mortgage has been created in favour of Bank. It is borrower's

contention that due to unforeseen circumstances, the account ran into

NPA. The borrower gave one time settlement proposal, however it was

not considered. The borrower has made substantial payment and

willing to settle the matter finally. It is stated that impugned

communication does not spell out the details of the property in respect

of which the action is contemplated. Though flats have been

mortgaged, however for sale of some of flats, the Bank has issued no

objection certificate.

10. The learned counsel appearing for petitioners on the point

of maintainability submitted that by virtue of Section 14(3) of the

SARFAESI Act, the act of the District Magistrate done in pursuance of

Section 14 of the SARFAESI Act cannot be called in question in any

Court or before any authority and therefore, the petitioners have no 7 4wp762.22.odt

alternate remedy. It is argued that the borrower has already sold and

created interest in their favour by way of valid agreement, therefore,

without hearing the petitioners, action cannot be initiated. It is argued

that the remedy of applying under Section 17 of the SARFAESI Act, is

available to the borrower, Guarantor or mortgagor, which the petitioners

cannot avail. It is submitted that the term "any person" employed in

Section 17 must have a proximity or nexus with the transaction and

therefore, the petitioners cannot fall within the sweep of the term of

"any person" to avail remedy of appeal. It is petitioners' contention that

they are aggrieved by the action initiated under Section 14 of the

SARFAESI Act and therefore, the remedy under Section 17 cannot be

resorted which is for challenging the action under Section 13(4) of the

SARFAESI Act. To support said contention, the petitioners have relied

on various decisions.

11. Moreover, it has been submitted that the petitioners have not

been heard before passing the impugned order and thus, there is blatant

violation of the principles of natural justice. It is argued that notice

under Section 13(2) of the SARFAESI Act, was issued by the Bank long

back in the year 2017, however there was compromise in between the

secured creditor and borrower, but the terms of compromise have not

been acted upon. It is submitted that the remedy under Section 17 of

the SARFAESI Act is available only after loosing possession. According 8 4wp762.22.odt

to the petitioners, they became owner of the property by valid registered

instrument which created independent right in their favour, thus, the

impugned action is not sustainable in the eyes of law.

12. The learned counsel appearing for the Creditor Bank strongly

resisted the maintainability of the petition. It is submitted that the

petitioners are not the owner of the subject flats, as merely an

agreement has been executed in between them. It is submitted that

though Bank has given no objection to sell some of the flats, however it

was with a rider that the sale proceeds shall be credited to the Bank

which the borrower did not. The builder/borrower has secured loan by

mortgaging subject property on 30.03.2015 i.e. much prior to the

execution of agreements to sell. It is submitted that the petitioners have

alternate remedy under Section 17 of the SARFAESI Act, as the term

"any person" is of wide import which encompasses all aggrieved

persons. According to the respondent, hearing of the interested person

is not contemplated before the District Magistrate while initiating action

under Section 14(2) of the SARFAESI Act. The learned counsel

appearing for the respondent Bank also relied on various decisions to

substantiate his stand.

13. There is no dispute that the borrower has created mortgage in

the year 2015 and by mortgaging several flats, a secured interest has

been created in respect of subject flats. The record indicates that 9 4wp762.22.odt

agreement to sell of Flat No. 102 has been executed in favour of

petitioner Nos 1 and 2, Flat No. 103 in favour of petitioner No.3, Flat

No. 703 in favour of petitioner No.4 and flat No. 603 in favour of

petitioner No.5 of which collateral security has been created by the

equitable mortgage.

14. It is petitioners' contention that, in terms of Section 14(3)

of the SARFAESI Act, the order passed by the District Magistrate done in

pursuance of Section 14 SARFAESI Act cannot be questioned in any

Court or before any authority, therefore petitioners being remedy-less,

the writ is available. For the sake of convenience, the relevant provision

is extracted herein below:-

"Section 14(1)......

(2)......

(3) No act of the Chief Metropolitan Magistrate or the District Magistrate (any officer authorized by the Chief Metropolitan Magistrate or District Magistrate) done in pursuance of this section shall be called in question in any Court or before any authority."

Section 17 of the SARFAESI Act provides a remedy of filing an

application to the DRT by any aggrieved person regarding the measures

taken in pursuance of Section 13(4) of the SARFAESI Act. The term

"Court" or "authority" cannot be equated with the "Debts Recovery

Tribunal" within the meaning of Section 2(i) of the SARFAESI Act which

is constituted in terms of Section 3(1) of the Recovery of Debts Due to

Banks and Financial Institutions Act. Essentially challenge to the steps 10 4wp762.22.odt

taken under Section 14 of the SARFAESI Act flows form the action taken

under Section 13(4) of the SARFAESI Act and therefore, the remedy is

under Section 17 of the SARFAESI Act. In view of that, the submission

in this regard is not acceptable.

15. The learned counsel appearing for petitioners by placing

relying on the decision of the Supreme Court in case of Standard

Chartered Bank Vs. V. Noble Kumar and others with connected matter,

(2013) 9 SCC 620 would submit that the remedy under Section 17 of

the SARFAESI Act is available to the borrower, only after losing

possession of secured assets. In the said decision, it is observed that the

secured creditor Bank can directly approach to the District Magistrate

for taking possession. It is observed that the borrower can avail remedy

of application under Section 17 of the SARFAESI Act, only after losing

possession of secured asset. Section 14 of the SARFAESI Act lays a

mechanism which provides safeguard to secure the interest of the

borrower. In case at hand, the petitioners are not the borrower to apply

under Section 17 of the SARFAESI Act after losing possession, but

interest has been created in their favour by way of agreement, therefore

being distinct facts, the said decision would not apply to the facts of the

case.

16. The petitioners have relied on the decision of the Supreme

Court in case of Harshad Govardhan Sondagar Vs. International Assets 11 4wp762.22.odt

Reconstruction Company Limited and others, (2014) 6 SCC 1 , which all

together stands on different footing. The Supreme Court has considered

the rights of a lessee of borrower in possession, of secured asset. The

lease granted by the borrower has been classified into three classes. It

has been ruled that if the lease is created prior to the mortgage creating

secured asset, and a lease created after mortgage, but prior to the

receipt of notice under Section 13(2) of the SARFAESI Act, then

possession of lesee cannot be delivered to secure creditor until lease has

been validly determined. In said context, it has been observed that there

is no remedy available to lessee of borrower under Section 17 of the

SARFAESI Act. The facts in hand are all together different as it is not a

case that the petitioners are lessee of borrower, but rights have been

created during subsistence of valid mortgage.

17. The petitioners have relied on the decision of this Court in

case of Ravi Commercial Urban Co-operative Bank Limited, Nagpur Vs.

the learned District Magistrate, Nagpur District, Nagpur and others

(Criminal Writ Petition No. 595/2011 and Criminal Application [APPW]

No. 146/2014, dated 05.08.2014), wherein a secured creditor has

applied to this Court against the borrower. In peculiar facts, the order of

the District Magistrate was set aside and remanded back to the authority

for fresh decision which would not assist the petitioners.

18. Our attention has been invited to the decision of this Court in 12 4wp762.22.odt

case of M/s. Trade Well, a Proprietorship Firm, Mumbai & anr. Vs.

Indian Bank and ann. 2007 SCC Online Bom 1232 , wherein the question

fell for consideration is whether the District Magistrate is required to

give notice or right of hearing to the borrower or any person who may

be in possession of secured assets. In that context, after considering

various decisions, it has been observed that, the District Magistrate

acting under Section 14 of the SARFAESI Act, is not required to give

notice either to the borrower or to the third party, as there is no

adjudication of any kind at that stage. Moreover, it is specifically ruled

that remedy provided under Section 17 of the SARFAESI Act, is available

to the borrower as well as to the third party. The conclusion has been

drawn in para 89 of the decision which reads as below:-

"89. Following conclusions emerge from the above discussion:

1. The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/ DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Sections 13 and 14 thereof to the case on hand.

2. CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party.

3. He has to only verify from the bank or financial institution whether notice under Section 13(2) of the NPA Act is given or not and whether the secured assets fall within his jurisdiction. There is no adjudication of any kind at that stage.

13 4wp762.22.odt

4. It is only if the above conditions are not fulfilled that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfilled. If these two conditions are fulfilled, he cannot refuse to pass an order under Section 14.

5. Remedy provided under Section 17 of the NPA Act is available to the borrower as well as the third party.

6. Remedy provided under Section 17 is an efficacious alternative remedy available to the third party as well as to the borrower where all grievances can be raised.

7. In view of the fact that efficacious alternative remedy is available to the borrower as well as to the third party, ordinarily, writ petition under Articles 226 and 227 of the Constitution of India should not be entertained.

8. In exceptional cases of gravest injustice, a writ petition could be entertained by this Court.

9. Great care and caution must be exercised while entertaining a writ petition because in a given case it may result in frustrating the object of the NPA Act.

10. Even if a writ petition is entertained, as far as possible, the parties should be relegated to the remedy provided under Section 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible."

19. In view of above, it is crystal clear that there is no adjudication

by the District Magistrate under Section 14 of the SARFAESI Act,

therefore notice of hearing is not contemplated. The said decision

would not help the petitioners rather it is against the submission made

on their behalf. Reliance is also placed on the decision of this Court in

case of HDFC Ltd., Vs. Dist. Magistrate, Washim, 2016(5) Mj.L.J. 100

which relates to giving an opportunity by the District Magistrate to the

secured creditor to limited extent which has no relevance to the facts of 14 4wp762.22.odt

this case.

20. On the other hand, the learned counsel appearing for Creditor

Bank placed reliance on various decisions to contend that the Writ Court

shall not entertain, due to existence of alternate remedy provided under

statute itself. For this purpose, heavy reliance is placed on the decision

of the Supreme Court in case of United Bank of India Vs. Satyawati

Tondon and others, 2010(8) SCC 110. After considering the aims and

objects of the SARFAESI Act, it has been categorically observed that the

High Court must insist that before availing remedy under Article 226 of

the Constitution of India, a person must exhaust the remedies available

under the relevant statute. These observation made in para 17 are

extracted herein below:-

"17. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and 15 4wp762.22.odt

State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."

21. Section 13 of the SARFAESI Act contains exhaustive

mechanism for enforcement of secured interest. A creditor may enforce

the secured interest without intervention of the Court or the Tribunal in

accordance with the provisions of the SARFAESI Act. In terms of Section

14 of the SARFAESI Act, the secured creditor can file an application

before the District Magistrate for taking possession thereof. On such

application, the District Magistrate is obliged to take possession of such

assets and forward the same to the secured Creditor. Section 17 of the

SARFAESI Act speaks about the remedies available to any person

including borrower who felt aggrieved by the action taken by the

secured creditor under Section 13(4) of the SARFAESI Act.

22. In the decision of the Supreme Court in case of Satyawati

(supra), it has been specifically ruled that term "any person" used in

Section 17(1) is of wide import. Herein the petitioner is obviously

aggrieved by the order passed under Section 14 of the SARFAESI Act

which very much flows from the order passed under Section 13(4) of

the SARFAESI Act, therefore they can avail said remedy. The Supreme

Court clarified that any person who may be affected by the action taken 16 4wp762.22.odt

under Section 13(4) of the SARFAESI Act or Section 14 of the SARFAESI

Actn can avail remedy under Section 17 of the SARFAESI Act.

Moreover, in above decision, the Supreme Court has cautioned for not to

entertain writ petition without exhausting statutory remedy.

23. The respondent Bank relied on the decision of the Supreme

Court in case of Jagdish Singh Vs. Heeralal and others, 2014(1) SCC

479, wherein the auction purchaser has filed civil suit. The Civil Court

upheld the objection about maintainability of suit, however the High

Court has set aside the objection. In that context, it is observed that the

expression "any person" used in Section 17 of the SARFAESI Act is of

wide import and takes within its fold not only the borrower, but also

guarantor or any other person who may be affected by action taken

under Section 13(4) of the SARFAESI Act. Finally, it is held that the

Civil Court's jurisdiction is completely barred so far as the measures

taken by a secured creditor under Section 13(4) of the SARFAESI Act.

24. Our attention has been invited to the decision of the Supreme

Court in case of Kanaiyalal Lalchand Sachdev & ors. Vs. State of

Maharashtra & ors, 2011(2) SCC 782, in which it has been observed that

the action under Section 14 of the SARFAESI Act constitute the action

taken after stage of Section 13(4) of the SARFAESI Act and therefore,

the same would fall within the ambit of Section 17(1) of the SARFAESI

Act. In view of said decision, it is clear that action under Section 14 of 17 4wp762.22.odt

the SARFAESI Act is consequential which flows from the action under

Section 13(4) of the SARFAESI Act. Therefore, the remedy under

Section 17 of the SARFAESI Act is efficacious remedy for any person

who is aggrieved by action under Section 13(4) of the SARFAESI Act as

well as Section 14 of the SARFAESI Act.

25. One another decision of the Supreme Court in case of

Authorized officer, State Bank of India of Travancore and another Vs.

Mathew K C, 2018 AIR (SC) 676 is cited to contend that a writ shall not

be normally entertained when alternate remedy is available.

Undoubtedly, the SARFAESI Act is complete Code by itself providing for

expeditious recovery of dues arising out of loan granted by financial

institutions. The statute provides a remedy to the aggrieved person

under Section 17 of the SARFAESI Act before the DRT followed by a

right to appeal before the Appellate Tribunal under Section 18 of the

SARFAESI Act. In existence of such specific mechanism, it is difficult to

accept the petitioners' contention that they being remedy-less, writ shall

be entertained.

26. In reported case of Hari Trading Corporation Vs. Bank of

Baroda, 2015(3) BankCas 284, the Division Bench of this Court took a

view that Section 14 of the SARFAESI Act is not a stage for adjudication

of rights and liabilities between the parties before the Magistrate.

Though Section 14 of the SARFAESI Act is suffered with an amendment, 18 4wp762.22.odt

no such right is created in favour of the borrower. It is observed that the

question of giving hearing to the borrower at the stage of taking

possession does not arise, as he has remedy under Section 17 of the

SARFAESI Act. On the same line, reliance is placed on the decision of

this Court in case of Crosscraft Private Ltd., Gautam Amonkar Vs.

Authorized Officer, Madgaum Urban Co-Op Bank Ltd., 2019(2) AIR

BomR 458, wherein this Court expressed that since the action under

Section 14 of the SARFAESI Act is in the nature of a measure under

Section 13(4) of the SARFAESI Act, undoubtedly as against such

measure, any person aggrieved can file application before the DRT in

order to seek redressal.

27. We are conscious of the fact that the powers conferred upon

this Court under Article 226 of the Constitution of India, are very wide

and there is no express limitation on exercise of that power but, at the

same time, we cannot be oblivious of the rules of self-imposed restraint

evolved in several decisions. True that the rule of exhaustion of

alternative remedy is a rule of discretion and not one of compulsion, but

it is difficult to fathom any reason why to entertain a petition filed under

Article 226 of the Constitution of India ignoring the fact that the

petitioners can avail effective remedy particularly contained in the

legislation.

28. It is relevant to note the observation of the Supreme Court 19 4wp762.22.odt

(para 30) in case of City and Industrial Development Corporation Vs.

Dosu Aardeshir Bhiwandiwala & Ors., 2009 1 SCC 168, following which

reads as below:

"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors."

29. Even though a provisions under the SARFAESI Act cannot

expressly oust jurisdiction of this Court under Article 226 and 227 of the

Constitution of India, nevertheless, when there is an alternative remedy

available, judicial prudence demands that the court refrains from

exercising its jurisdiction under the Constitutional provisions. There is

hierarchy of appeal provided in the SARFAESI Act itself, namely filing of

application under Section 17 of the SARFAESI Act and filing of appeal

under Section 18 of the SARFAESI Act.

30. It is clear that instead of applying under Section 17 of the

SARFAESI Act, the petitioners have approached in writ jurisdiction. The

law in this regard is well settled in above decisions specially in case of

Satyawati (supra), exposing a proposition that statutory remedy has to 20 4wp762.22.odt

exhaust first instead of filing writ petition. Therefore, we are not

inclined to interfere into the impugned order which flows from the

action taken by the secured creditor under Section 13 of the SARFAESI

Act. In view of above, the writ petition is dismissed with liberty to the

petitioners to take out appropriate proceeding before the DRT, if so

advised. We are continuing the interim protection for the period of four

weeks from today in order to enable the petitioners to apply for suitable

orders before the DRT. Since the petitioners were before this Court up-

till-now, if the petitioners apply to the DRT within one month, the same

shall not be refused on the ground of bar of limitation. All questions of

law and fact remain open for consideration in any application made by

the aggrieved before the statutory forum under the SARFAESI Act.

                      (MRS.VRUSHALI V. JOSHI, J.)                 (VINAY JOSHI, J.)


               Gohane




         Digitally
         signed by
         JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
         2023.03.17
         16:17:27
         +0530