[Cites 11, Cited by 0]
Bombay High Court
Nursaba Tahidul Hassan Azad And Ors vs Union Of India Thr Sec. Ministry Of ... on 1 April, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:15604-DB 3-WP-8798-2025 @ ORS.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8798 OF 2025
Mohd. Mozahiddin Azada and Anr. ...Petitioners
Versus
Union Of India
Through Secretary Ministry of Finance
and Ors. ...Respondents
ALONGWITH
WRIT PETITION NO. 8803 OF 2025
Mohd. Mozahiddin Azada and Ors. ...Petitioners
Versus
Union Of India
Through Secretary Ministry of Finance
and Ors. ...Respondents
ALONGWITH
WRIT PETITION NO. 8802 OF 2025
Nursaba Tahidul Hassan Azada and Ors. ...Petitioners
Versus
Union Of India
Through Secretary Ministry of Finance
and Ors. ...Respondents
_______
Mr. Omkar Nagwekar for the Petitioners.
Mr. Murugaseelan Perumal a/w Ms. Shweta Kannan for Respondent Nos. 3
and 4.
Mr. D.P. Singh for Respondent No.1 - Union of India.
_______
CORAM: MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
DATE: 1st APRIL 2026
P.C.
1. Heard Learned Counsel for the parties.
2. These three Writ Petitions came up for consideration before a
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Division Bench of this Court (Coram : M.S. Karnik and N.R. Borkar, JJ) on
1st July 2025. Despite availability of alternative remedy for the Petitioners
to approach the Debt Recovery Tribunal ("the DRT") under the provisions
of Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 ("the SARFAESI Act"), the Division Bench of this
Court showed indulgence to the Petitioners on the basis that they claimed
to have approached the Respondent - Bank for One Time Settlement
("OTS"). It was also stated on behalf of the Petitioners that they were
willing to offer OTS to the Respondent - Bank and that they would be
ready to surrender possession of two properties. As regards the third
property, it was claimed that classes for UPSC were being conducted in the
premises and since the examinations were due, this Court may consider
granting some relief. Having recorded the said contentions of the
Petitioners with regard to the third property, the Division Bench of this
Court directed that the Respondent - Bank should not dispossess the
Petitioners till the next date of listing. It is crucial to note that in Paragraph
No. 6 of the said order it was recorded that the Petitioner who was present
in the Court had stated that a payment schedule would be submitted by the
next date within which the outstanding amount would be repaid to the
Respondent - Bank.
3. The returnable date was 24th July 2025, by which time the payment
schedule was to be submitted. On the said date further time was sought on
behalf of the Petitioners to approach the Respondent - Bank for settlement
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and accordingly the proceedings were adjourned to 5 th August 2025 and
the ad-interim order was continued.
4. Thereafter, the Petition was listed on various dates before this Court
but it could not be taken up for consideration due to paucity of time. It is
an admitted position that even till date the Petitioners, including the
Petitioner who was present in Court on 1st July 2025, failed to approach the
Respondent - Bank with payment schedule for re-payment of the
outstanding amount.
5. It is at the behest of the Respondent - Bank that these Writ Petitions
have been circulated today.
6. It appears that there has been a change of Advocates for the
Petitioners in the meanwhile and the Learned Counsel for the Petitioners
appearing today is again seeking time to give the payment schedule and/or
propose an OTS to the Respondent - Bank.
7. We find that the Learned Counsel for the Respondent - Bank is
justified in contending that the Petitioners have misused the indulgence
shown by this Court in its order dated 1 st July 2025. They have taken no
steps to give payment of schedule and to make good their offer, which was
accepted by this Court while showing indulgence and restraining the
Respondent - Bank from taking possession of the third property.
8. As per settled law laid down by the Supreme Court in the case of
Bijnor Urban Cooperative Bank Limited, Bijnor and Others vs. Meenal
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Agarwal and Others1, the writ Court cannot exercise jurisdiction to insist
upon the secured creditor/bank to accept OTS that may be proposed by
defaulting borrowers. Therefore, there is no question of this Court
entertaining such a request on the part of the Petitioners.
9. It is also to be noted that the Petitioners have been enjoying ad-
interim order granted by this Court on 1st July 2025, on a solemn
undertaking given by one of the Petitioners who was present in the Court
that a payment schedule would be submitted by the next date of listing,
under which the outstanding amount would be paid to the Respondent -
Bank. On the returnable date further time was sought and till date no such
payment schedule has been submitted by the Petitioners. We are of the
opinion that no further indulgence can be shown to the said Petitioners by
this writ Court.
10. Even otherwise, Writ Petitions ought not to be entertained in the face
of statutory remedy available under the provisions of SARFAESI Act. As a
matter of fact, the Supreme Court has repeatedly held that when such a
statutory remedy under the provisions of the SARFAESI Act is available to
aggrieved persons, the High Court ought not to entertain such Writ
Petitions. In the case of United Bank of India vs. Satyawati Tondon and
Others2, the Supreme Court in this context held as follows :
42. 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
1 (2023) 2 Supreme Court Cases 805
2 (2010) 8 Supreme Court Cases 110
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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 Section 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.
43. 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 State Legislatures for recovery of such dues are a
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.
44. While expressing the aforesaid view, we are conscious that the
powers conferred upon the High Court under Article 226 of the
Constitution to issue to any person or authority, including in
appropriate cases, any Government, directions, orders or writs
including the five prerogative writs for the enforcement of any of
the rights conferred by Part III or for any other purpose 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 by this Court, which every High Court is
bound to keep in view while exercising power under Article 226 of
the Constitution.
45. It is 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 the High Court should entertain a petition
filed under Article 226 of the Constitution and pass interim order
ignoring the fact that the petitioner can avail effective alternative
remedy by filing application, appeal, revision, etc. and the
particular legislation contains a detailed mechanism for redressal
of his grievance.
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11. Recently the Supreme Court reiterated the said position of law in the
case of CELIR LLP vs. Bafna Motors (Mumbai) Private Limited and Others 3.
In fact, the Supreme Court, having taken note of the position of law, was
constrained to observe in the said judgment as follows :
101. More than a decade back, this Court had expressed serious
concern despite its repeated pronouncements in regard to the High
Courts ignoring the availability of statutory remedies under the
RDBFI Act and the SARFAESI Act and exercise of jurisdiction under
Article 226 of the Constitution. Even after, the decision of this
Court in Satyawati Tondon, it appears that the High Courts have
continued to exercise its writ jurisdiction under Article 226
ignoring the statutory remedies under the RDBFI Act and the
SARFAESI Act.
12. In the light of the said position of law, we are no longer inclined to
keep these Writ Petitions pending in this Court, particularly taking into
consideration the conduct of the Petitioners.
13. In view of the above, the Writ Petitions are dismissed. The ad-
interim order dated 1st July 2025 is vacated.
14. Needless to say, the order passed by this Court dismissing these Writ
Petitions will not come in the way of the Petitioners exhausting the
alternative remedy strictly in accordance with law.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
3 (2024) 2 Supreme Court Cases 1
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