[Cites 19, Cited by 0]
Gujarat High Court
Legal Heirs Of Deceased Govindbhai ... vs Bank Of India on 17 December, 2025
NEUTRAL CITATION
C/SCA/17154/2025 ORDER DATED: 17/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17154 of 2025
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LEGAL HEIRS OF DECEASED GOVINDBHAI KHODABHAI PANSURIYA &
ORS.
Versus
BANK OF INDIA
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Appearance:
MR MITUL SHELAT with ADITYA A GUPTA(7875) for the Petitioner(s) No.
1,1.1,1.2,1.3,2,3,4,5,6
MR SAUMITRA CHATURVEDI(8369) for the Petitioner(s) No.
1,1.1,1.2,1.3,2,3,4,5,6
MS NALINI S LODHA(2128) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 17/12/2025
ORAL ORDER
1. By the present Writ Petition, the petitioner is praying for an
appropriate writ to quash and set aside the actions of the
respondent Bank under the provisions of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002, more particularly, demand notice under Section
13(2), possession notice dated 07.05.2025 under Section 13(4) on
the ground that the same is illegal and in violation of Section 13(3A)
of the Act.
2. The main contention of the learned counsel Mr. Mitul Shelat
appearing for the petitioners is that though the petitioners had
given a reply to the notice under Section 13(2), the same has not
been adjudicated as per Section 13(3A) of the Act. In view thereof,
he submits that further actions on the part of the respondent Bank
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are bad in law. In support of his contentions, the learned counsel
has relied upon the following decisions:-
(i) Order dated 25.11.2013 passed by this Court in
Special Civil Application No.10038 of 2013
(ii) United Bank of India vs. Satyawati Tondon and ors.
[(2010) 8 SCC 110]
(iii) ITC Limited vs. Blue Coast Hotels Limited
(2018 15 SCC99]
(iv) Punjab & Sind Bank vs. Tensil Steel Limited
(LPA No.865 of 2006)
(v) Tensil Steel Limited vs. Punjab and Sind Bank
(AIR 2007) Guj 126)
(vi) Jalaram Cotton & Proteins Limited vs. Authorized
Officer Kotak Mahindar Bank Limited
(SCA 14614 of 2015)
(vii) Krushna Chandra Sahoo vs. Bank of India
(2008 SCC Online Ori 47)
(viii) Sunanda Kumari vs. Standard Chartered Bank
(2006 SCC Online Kar 227)
(ix) Pan Pipes Resplendents ltd. vs. Stressed
Assets Stabilization Fund (SCA No.4045 of 207)
(x) Harsora Hotels Pvt. Ltd. vs. Kotak Mahindra Bank
(2014 SCC Online Guj 9203)
(xi) Mardia Chemicals vs. Union of India
(2004 4 SCC 311)
3. Heard the learned counsel for the petitioners, considered the
submissions and perused the documents on record.
4. The Larger Bench of the Apex Court in the case of PHR
Invent Educational Society v. UCO Bank & Ors. [(2024) 6 SCC
579], has held thus :-
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"22. The law with regard to entertaining a petition under Article
226 of the Constitution in case of availability of alternative remedy
is well settled. In Satyawati Tondon, this Court observed thus:
"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, the 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."
23. It could thus be seen that, this Court has clearly held 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. It has been held that this rule applies with
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greater rigour in matters involving recovery of taxes, cess, fees,
other types of public money and the dues of banks and other
financial institutions. The Court clearly observed that, 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. It has been held
that, though the powers of the High Court under Article 226 of the
Constitution are of widest amplitude, still the Courts cannot be
oblivious of the rules of self-imposed restraint evolved by this Court.
The Court further held that though the rule of exhaustion of
alternative remedy is a rule of discretion and not one of compulsion,
still it is difficult to fathom any reason why the High Court should
entertain a petition filed under Article 226 of the Constitution.
24. The view taken by this Court has been followed in the case of
Agarwal Tracom Private Limited vs. Punjab National Bank.
25. In State Bank of Travancore vs. Mathew K. C., this Court was
considering an appeal against an interim order passed by the High
Court in a writ petition under Article 226 of the Constitution staying
further proceedings at the stage of Section 13(4) of the SARFAESI
Act. After considering various judgments rendered by this Court, the
Court observed thus:-
"16. The writ petition ought not to have been entertained
and the interim order granted for the mere asking without
assigning special reasons, and that too without even granting
opportunity to the appellant to contest the maintainability of
the writ petition and failure to notice the subsequent
developments in the interregnum. The opinion of the Division
Bench that the counter-affidavit having subsequently been
filed, stay/modification could be sought of the interim order
cannot be considered sufficient justification to have declined
interference."
26. The same position was again reiterated by this Court in the
case of Phoenix ARC Private Limited vs. Vishwa Bharati Vidya
Mandir and ors.
27. Again, in the case of Varimadugu OBI Reddy v. B.
Sreenivasuly and others, after referring to earlier judgments, this
Court observed thus:
"34. The order of the Tribunal dated 1-8-2019 was an
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appealable order under Section 18 of the SARFAESI Act,
2002 and in the ordinary course of business, the
borrowers/person aggrieved was supposed to avail the
statutory remedy of appeal which the law provides
under Section 18 of the SARFAESI Act, 2002. In the
absence of efficacious alternative remedy being availed,
there was no reasonable justification tendered by the
respondent borrowers in approaching the High Court and
filing writ application assailing order of the Tribunal
dated 1-8-2019 under its jurisdiction under Article 226 of
the Constitution without exhausting the statutory right
of appeal available at its command."
28. It could thus be seen that this Court has strongly deprecated
the practice of entertaining writ petitions in such matters.
29. Recently, in the case of Celir LLP(supra), after surveying
various judgments of this Court, the Court observed thus:
"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."
30. It can thus be seen that it is more than a settled legal
position of law that in such matters, the High Court should not
entertain a petition under Article 226 of the Constitution particularly
when an alternative statutory remedy is available.
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36. In so far as the contention of the Borrower and its reliance on
the judgment of this Court in the case of Mohd. Nooh is concerned,
no doubt that non-exercise of jurisdiction under Article 226 of the
Constitution on the ground of availability of an alternative remedy is
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a rule of self- restraint. There cannot be any doubt with that
proposition. In this respect, it will be relevant to refer to the
following observations of this Court in the case of Commissioner of
Income Tax and Others v. Chhabil Dass Agarwal:-
"15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of alternative
remedy i. e. where the statutory authority has not acted
in accordance with the provisions of the enactment in
question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the
provisions which are repealed, or when an order has
been passed in total violation of the principles of natural
justice, the proposition laid down in Thansingh Nathmal
case, Titaghur Paper Mills case and other similar
judgments that the High Court will not entertain a
petition under Article 226 of the Constitution if an
effective alternative remedy is available to the
aggrieved person or the statute under which the action
complained of has been taken itself contains a
mechanism for redressal of grievance still holds the
field. Therefore, when a statutory forum is created by
law for redressal of grievances, a writ petition should not
be entertained ignoring the statutory dispensation."
37. It could thus clearly be seen that the Court has carved
out certain exceptions when a petition under Article 226 of the
Constitution could be entertained in spite of availability of an
alternative remedy. Some of them are thus:
(i) where the statutory authority has not acted in accordance
with the provisions of the enactment in question;
(ii) it has acted in defiance of the fundamental principles of
judicial procedure;
(iii) it has resorted to invoke the provisions which are
repealed; and
(iv) when an order has been passed in total violation of the
principles of natural justice.
38. It has however been clarified that the High Court will not
entertain a petition under Article 226 of the Constitution if an
effective alternative remedy is available to the aggrieved person or
the statute under which the action complained of has been taken
itself contains a mechanism for redressal of grievance.
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41. While dismissing the writ petition, we will have to remind the
High Courts of the following words of this Court in the case of
Satyawati Tondon since we have come across various matters
wherein the High Courts have been entertaining petitions arising
out of the DRT Act and the SARFAESI Act in spite of availability of an
effective alternative remedy:
"55. It is a matter of serious concern that despite
repeated pronouncement of this Court, the High Courts
continue to ignore the availability of statutory remedies
under the DRT Act and the 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. We
hope and trust that in future the High Courts will
exercise their discretion in such matters with greater
caution, care and circumspection."
5. In the present case, the demand notice is issued calling upon
the petitioners for repayment of Rs.12.91 crores. In view of the
judgment in PHR Invent Educational Society (supra), this Court
is not inclined to entertain the present writ petition. The petitioners
have alternate efficacious remedy to challenge the proceedings
before the learned Debts Recovery Tribunal. The petitioners are at
liberty to raise all the contentions as are available in law in case the
petitioners propose to file appropriate proceedings.
6. It is clarified that this Court has not gone into the merits of the
case and no opinion is expressed thereon.
7. The Special Civil Application accordingly stands dismissed.
(ANIRUDDHA P. MAYEE, J.)
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