Bombay High Court
Sanjay Harilal Kanojiya And Anr vs The Saraswat Coop Bank And Ors on 8 September, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-AS:37775-DB
501-wp-11734-2025.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11734 OF 2025
Sanjay Harilal Kanojiya ... Petitioner
JITENDRA
SHANKAR
NIJASURE Versus
Digitally signed by
JITENDRA SHANKAR
NIJASURE
Date: 2025.09.11
11:15:20 +0530 The Saraswat Co-operative Bank Ltd. & Ors. ... Respondents
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Gracy Saldanha, for the Petitioners.
Mr. Nikhil Rajani i/b. M/s. V. Deshpande and Co. for the Respondent
No.1.
Mrs. Reena A Salunkhe, AGP for Respondent Nos.3 and 4.
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CORAM : R.I. CHAGLA AND
FARHAN P. DUBASH, JJ.
DATE : 8TH SEPTEMBER, 2025.
ORDER :
1. By this Writ Petition, the Petitioner is challenging the
Order dated 12th March, 2025 ("impugned order") passed by the
learned Chief Judicial Magistrate at Esplanade, Mumbai ("CJM") in
Securitisation Application No.1352/SA/2024 which has been passed
under Section 14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
("SARFAESI Act") and has sought for quashing and setting aside of
501-wp-11734-2025.doc
the impugned Order and consequential Writ of Commission in Writ
No.321 of 2025 dated 9th July, 2025 issued by the learned CJM.
2. The Writ Petition had moved on the ground of urgency
and placed on the production board. The urgency shown by the
Petitioner is that the Respondent No.2 - Court Commissioner has
issued intimation dated 9th August, 2025 to the Petitioner, fixing 9th
September, 2025 i.e. tomorrow at 11.00 a.m. for execution of the
possession warrant with police assistance in respect of the Petitioners'
sole commercial premises being Shop No.5, La-Vista CHS Ltd.,
Borivali (East), Mumbai - 400 066 ("subject premises"). The
Petitioners have submitted that they will be dispossessed from a small
laundry business carried out from the subject premises.
3. The Petition has been opposed by the Respondent No.1 -
Bank. The learned Counsel appearing for the Respondent - Bank has
referred to the averment in paragraph 15 of the Petition, wherein it is
stated that the Petitioner had received intimation on 9th August,
2025 from Respondent No.2 - Court Commissioner stating that
possession will be taken on 9th September, 2025 with police
assistance, pursuant to the ex-parte Order dated 9th July 2025
501-wp-11734-2025.doc
passed in Writ No.321 of 2025. He has submitted that there is an
alternate remedy available to the Petitioner i.e. before the Debt
Recovery Tribunal ("DRT"). He has placed reliance upon the
judgment of the Supreme Court in United Bank of India V/s.
Satyawati Tondon and Ors.1 wherein the Supreme Court has
expressed serious concern that despite repeated pronouncement, the
High Courts continue to ignore the availability of statutory remedies
under the DRT Act and the SARFAESI Act and exercise jurisdiction for
passing Orders which have serious adverse impact on the right of
banks and other financial institutions to recover their dues. The
Supreme Court was convinced that the High Court was not at all
justified in injuncting the Appellant from taking action in furtherance
of notice issued under Section 13(4) of the SARFAESI Act. The
Supreme Court has expressed hope and desire that the High Court
will exercise their discretion in such matters with greater caution,
care and circumspection.
4. The learned Counsel for the Respondent No.1 - Bank has
further submitted that there is a bar under Section 34 of the
SARFAESI Act from Civil Courts entertaining any Suit or proceedings
1 (2010) 8 Supreme Court Cases 110.
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related to matters that DRT or Appellate Tribunal is empowered to
decide under the Act and no injunction shall be granted by any Court
or other authority in respect of any action taken or to be taken in
pursuance of any power conferred by or under the Act. He has
submitted that the statutory remedy i.e. under Section 17 of the
SARFAESI Act is available to the Petitioners to challenge notice issued
under Section 13(2) and (4). He has submitted that the Section 14
order passed by the learned CJM on 12th March, 2025 is necessarily
an order passed exparte as it is an aid to the Section 13(2) and 13
(4) Notice for recovery of possession of the secured assets. He has
accordingly submitted that the present Writ Petition be dismissed on
the ground of alternate statutory remedy available under the
SARFAESI Act.
5. Having considered the submissions, we find that in the
facts of the present case, an intimation was received by the Petitioner
from the Respondent No.2 - Court Commissioner stating that
possession will be taken on 9th September, 2025 pursuant to the
Order dated 12th March, 2025 in Writ of Commission NO.321 of
2025 dated 9th July, 2025 issued by the learned CJM. Inspite of
which, the present Petition has been filed on 3rd September, 2025.
501-wp-11734-2025.doc
Further, the Petitioner has statutory remedy under Section 17 of the
SARFAESI Act before the DRT, which they failed to avail of.
6. It has been held by the Supreme Court in United Bank of
India (Supra) that the High Courts continue to ignore the availability
of statutory remedies under the DRT Act and SARFAESI Act and
exercise jurisdiction under Article 226 for passing orders which have
serious adverse impact on the right of banks and other financial
institutions to recover their dues.
7. In the present case, the Petitioners have invoked this
Court's jurisdiction under Article 226 for passing an order which
would have serious adverse impact on the right of the Respondent
No.1 - Bank to recover their dues. Thus, the above Writ Petition
which seeks such a prayer cannot be entertained by this Court given
that the Petitioner has a statutory remedy available under Section 17
of the SARFAESI Act to challenge the Section 13(2) and 13(4)
notices.
8. The Order passed by the learned CJM is in aid of the
Section 13(4) Notice for recovery of possession of the secured asset
501-wp-11734-2025.doc
and is necessarily passed exparte. Accordingly, the said Order dated
12th March, 2025 passed by the learned CJM as well as Writ of
Commission No.321 of 2025 dated 9th July, 2025 issued by the
learned CJM pursuant thereto cannot be challenged on the ground of
it being passed ex-parte.
9. Accordingly, the present Writ Petition is devoid of merit
and is dismissed. There shall be no Order as to costs.
[FARHAN P. DUBASH, J ] [R.I. CHAGLA J.]
