Calcutta High Court
Bani Singh vs Idbi Bank Limited And Ors on 16 September, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
2025:CHC-OS:183-DB
OD-15
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM JUDGMENT AND ORDER PASSED IN ITS
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
APO/43/2025
IA No.GA/1/2025
BANI SINGH.
-VERSUS-
IDBI BANK LIMITED AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Rupak Ghosh, Adv.
Mr. Debdut Mukherjee, Adv.
Ms. Nairanjana Ghosh, Adv.
For the KMC : Mr. Biswajit Mukherjee, Adv.
Ms. Manisha Nath, Adv.
For the IDBI Bank : Ms. Soni Ojha, Adv.
For the RBI : Mr. D. K. Kundu, Adv.
Mr. Arjun Basu, Adv.
HEARING C0NCLUDED ON : 16.09.2025
DELIVERED ON : 16.09.2025
DEBANGSU BASAK, J.:-
1.
Appeal is directed against an order dated January 16, 2025 passed in
WPO/1229/2023.
2. Appeal is at the behest of the writ petitioner.
3. By the impugned order the learned Single Judge dismissed the writ
petition after noticing that IDBI Bank proceeded under the provisions of
2025:CHC-OS:183-DB
SARFAESI Act, 2002 and that there is a statutory alternative remedy
available to the appellant.
4. Learned advocate appearing for the appellant submits that, the appellant
is neither a borrower nor a guarantor of IDBI Bank. He draws the
attention of the Court to the title documents of appellant. He submits
that, the title deed stands in favour of the appellant. The registered title
deeds are such that the borrower cannot claim title over the immovable
property concerned.
5. Learned advocate appearing for the appellant submits that, by reason of
the registered title deed as standing today, the property cannot be said to
be validly mortgaged with IDBI Bank. Therefore, the initiation of
proceeding under the SARFAESI Act, 2002 as against the immovable
property is concerned is wholly without jurisdiction, bad in law and,
therefore, required to be interfered with under Article 226 of the
Constitution of India.
6. Learned advocate appearing for the appellant submits that, appellant did
not receive any notice under Section 13(2) of the Act of 2002. The
appellant is remediless so far as the steps taken under the 2002 Act in
relation to the immovable property is concerned. He submits that, as on
date there would be an issue of limitation in approaching the Debts
Recovery Tribunal in the event the appellant is required to approach the
same under the Act of 2002.
7. In support of the contention that, where the proceeding under the
SARFAESI Act, 2002 is wholly without jurisdiction, a writ Court can
intervene, learned advocate appearing for the appellant relies on (2011)
2025:CHC-OS:183-DB
1 CHN 10 (Debasree Das vs. State of West Bengal & Ors.). He relies
on (2023) 17 SCC 311 (South Indian Bank Ltd. & Ors. vs. Naveen
Mathew Philip & Anr.) for the proposition that a writ petition is
maintainable where proceedings are wholly without jurisdiction.
8. Learned advocate appearing for the Bank submits that, there is a valid
mortgage created in respect of the immovable property concerned by the
deposit of title deeds. She submits that since, the appellant possessed a
statutory alternative remedy under the SARFAESI Act, 2002, writ petition
was rightly held to be not maintainable. In support of her contention
that the writ petition is not maintainable, learned advocate appearing for
the Bank relies upon (2023) 14 SCC 159 (G. Vikram Kumar vs. State
Bank of Hyderabad & Ors.).
9. In the facts and circumstances of the present case, admittedly provisions
of the SARFAESI Act, 2002 were invoked for the purpose of proceeding as
against the immovable property concerned. Appellant before us claims
higher and better title than the mortgagor of such immovable property.
By reason of such higher and better title, appellant's claim that the
proceedings under the SARFAESI Act, 2002 are not maintainable in
relation to the immovable property concerned.
10. At the very least, there are disputed questions of facts and law involved
as to who possesses higher and better right in respect of the immovable
property concerned. It is the claim of the appellant that, the appellant
possesses higher and better right than the borrower. The bank claims
otherwise. The bank claims valid mortgage by deposit of title deed in
respect of the immovable property. Purely on the anvil of disputed
2025:CHC-OS:183-DB
question of facts and law and involved on the issue as to the title to the
immovable property concerned, a writ Court should not intervene.
11. There is another dimension to the entire controversy involved in the
present case. As noted above, proceedings under SARFAESI Act, 2002
were initiated in respect of the immovable property concerned by the
bank. It is not the case of the appellant that, IDBI Bank which initiated
the SARFAESI proceeding in respect of the immovable property
concerned cannot invoke the provisions of such Act. IDBI Bank is
otherwise authorised to invoke the provisions of the SARFAESI Act.
12. Issue is whether the IDBI Bank validly invoked SARFAESI Act, in respect
of the property concerned or not. With due respect, such an issue can be
adequately considered and decided upon by Debts Recovery Tribunal
under the provisions of Section 17 of the 2002 Act.
13. In the facts and circumstances of the present case, we cannot say that
the appellant is not entitled to approach the Debts Recovery Tribunal
under Section 17 of the SARFAESI Act.
14. Debasree Das (supra) is a decision of a Division Bench of this Hon'ble
Court. Subsequent to Debasree Das (Supra) the Supreme Court in both
South Indian Bank Limited and Ors. (supra) as well as G.Vikram Kumar
(supra) held that a writ petition is not maintainable when there are
statutory alternative remedies available particularly when provisions of
the SARFAESI Act are invoked.
15. In South Indian Bank & Ors. (supra) the Supreme Court noted that a
writ petition is maintainable notwithstanding the availability of statutory
alternative remedy. It considered an earlier decision and held that, there
2025:CHC-OS:183-DB
are four exceptions to the rule of alternative remedy, namely, a writ
petition is filed for infringement of fundamental rights, or, that there is a
violation of principles of natural justice or, order or proceeding are wholly
without jurisdiction or, the vires of the legislation is under challenge. In
the facts and circumstances of the present case, as noted above, we are
not in a position to say that the invocation of the SARFAESI Act by IDBI
Bank as against the immovable property concerned is wholly without
jurisdiction.
16. In G. Vikram Kumar (supra) the Supreme Court held that a writ petition
assailing an e-auction notice was not maintainable in view of the
availability of the alternative remedy of appeal under Section 17 of the
SARFAESI Act.
17. In the facts and circumstances of the present case, since the appellant
possesses a statutory alternative remedy under the SARFAESI Act and
since the learned Single Judge exercised discretion in not admitting the
writ petition, we find no ground to interfere in this appeal.
18. Accordingly, APO/43/2025 along with the connected application are
dismissed without any order as to costs.
(DEBANGSU BASAK, J.)
19. I agree.
(MD. SHABBAR RASHIDI, J.)
A/s.
