Gujarat High Court
Rameshbhai Rambhai Dodiya vs Authorised Officer, Union Bank Of India on 9 May, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 645 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 14682 of 2022
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RAMESHBHAI RAMBHAI DODIYA
Versus
AUTHORISED OFFICER, UNION BANK OF INDIA & ANR.
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Appearance:
MR MAULIK NANAVATI FOR MR.KIRIT R CHAUDHARI(3745) for
the Appellant(s) No. 1
MR P A MEHD(3489) for the Respondent(s) No. 2
MS NALINI S LODHA(2128) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 09/05/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. Having heard learned counsels for the parties and
perused the record of the Special Civil Application No.
14682 of 2022, which has been summoned by us with
the order dated 05.05.2022, pertinent is to record that
the Writ petition has been filed by the guarantor of the
secured asset, which was sought to be auctioned in a
proceeding under the Securitisation and Reconstruction
of Financial Assets and Enforcement Of Security Interest
Act, 2002 (in short as "SARFAESI Act, 2002").
2. The sequence of events, pertinent to be taken on record
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are that the notice under Section 13(2) while initiating
proceedings under the SARFAESI Act, 2002 was served
upon the borrower/guarantor on 01.11.2018. The Bank
has taken symbolic possession of the secured asset on
09.01.2019. Further, possession notice under Section
13(4) was issued on 22.03.2019. e-auction sale notice
was issued further on 27.04.2019.
3. At this stage, the original petitioner/appellant herein
filed securitisation application being S.A. No.231 of 2019
before the Debts Recovery Tribunal at Ahmedabad
challenging the entire action of the respondent bank
including the sale notice dated 27.04.2019. The said
Securitisation Application was disposed of vuide order
dated 03.09.2019 noticing that the terms and conditions
of the sale were uploaded belatedly and there was a
breach of Rule 8(6) of the Security Interest
(Enforcement) Rules, 2002 and hence, the sale notice
was set aside.
4. Thereafter, the Bank had filed an Original Application
No. 514 of 2019 on 11.06.2019 before the DRT for
recovery of outstanding amount.
5. Another e-auction sale notice was issued on 20.06.2019
for the property in question (secured asset). The
petitioner herein filed another Securitisation Application
No. 304 of 2019 on 19.07.2019 challenging the sale
notice dated 20.06.2019 contending that the reserve
price shown in the sale notice was on the lower side and
that the bank intended to sell the said properties at a
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throwaway price in connivance with some third party.
The said Securitisation Application was disposed of vide
order dated 26.07.2019 containing the following
directions :-
"14. However, bank may proceed further on the
demand notice and possession notice already
issued by obtaining fresh valuations. Further, I
feel fair to say that bank is required to take action
against the valuer in accordance with law if at all
that valuer has given exorbitant valuation at the
time of sanction of loan.
15. I have not expressed any opinion about the
value of the property for which bank put the
property on auction nor this Tribunal has
expressed any opinion that value is on lower side.
This Tribunal has passed this order only on the
basis of non-consideration of common plot area and
internal road area while arriving at valuation of the
property. The bank is directed to obtain valuation
from at least two valuers before putting the
property on auction".
6. The third auction notice was issued on 22.08.2019 fixing
reserve price at Rs.16 crores. The third securitisation
application, i.e. S.A. No. 481 of 2019 was filed by the
original petitioner/appellant herein challenging the
entire action of the respondent Bank under the
SARFAESI Act, 2002 including e-auction sale notice
dated 22.08.2019 for the auction which was scheduled
on 26.09.2019.
7. The auction was, however, successful and the sale
certificate was issued in favour of the successful bidder
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on 28.11.2019. A registered sale deed pursuant to the
said auction has been executed in favour of respondent
no.2 herein on 21.05.2020.
8. In the meantime, the Original Application No. 514 of
2019 filed by the Bank has been allowed by the DRT on
17.11.2020. Pursuant thereto, recovery proceeding has
been initiated and execution application has been filed,
which is pending. It is sought to be submitted that the
order dated 17.11.2020 passed by the Debts Recovery
Tribunal in allowing the Original Application No. 514 of
2019 has not been challenged before the appropriate
appellate authority. However, a Miscellaneous
Application No. 7 of 2021 has been filed before the
Presiding Officer seeking for recall of the order on the
premise of the same being an ex parte order, which is
pending as on date.
9. In the meantime, the Securisation Application No 418 of
2019 challenging the e-auction sale notice dated
22.08.2019 has been dismissed on 21.06.2022 by the
Debts Recovery Tribunal and the sale held on
26.09.2019 has been upheld.
10. At this stage, instead of approaching the Debt Recovery
Appellate Tribunal by filing an appeal under Section 18
of the SARFAESI Act, 2002, the original petitioner has
filed the Writ petition, out of which the present appeal
has arisen. From a perusal of the Writ petition, we may
record that while challenging the order passed by the
DRT, the petitioner also challenged the proceedings
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initiated under the SARFAESI Act, 2002 by issuing
notices issued under Sections 13(2) and 13(4) of the
SARFAESI Act, 2002. The question, therefore, would be
as to whether the petitioner can be permitted to
challenge the initiation of the proceedings under the
SARFAESI Act, 2002 after disposal of two Securitisation
Applications filed by him on previous occasion.
11. Be that as it may, it is more than evident that the
petitioner instead of approaching the competent
statutory appellate authority, has approached this Court
to challenge the order passed by the DRT in upholding
the sale in the third round of challenge to the auction
notice dated 22.08.2019. The challenge was not
maintainable as such. The Writ petition filed on
27.07.2022, however was initially entertained, but has
been dismissed on the ground that the findings of fact
arrived by the Tribunal with regard to e-auction sale
notice dated 22.08.2019 issued by the respondent Bank
cannot be examined within the scope of Article 226 of
the Constitution of India. The learned Single Judge in
the judgment impugned has noted that the issue as to
whether the sale conducted by the Bank contrary to the
statutory provisions would fall outside the the
jurisdiction of this Court, inasmuch as, it would require a
factual inquiry into the issues raised by the original
petitioner.
12. Having noted the facts of the present case, insofar as the
observations made by the learned Single Judge in the
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judgment impugned, we find that the appropriate
statutory remedy to challenge the order passed by the
DRT under Section 17 of the SARFAESI Act, 2002 before
the petitioner was to approach the appellate authority
under the provisions of Section 18 of the SARFAESI Act,
2002. The Writ petition cannot be treated as an
alternative remedy to challenge the order passed by the
DRT which would require a factual inquiry. The action
of the petitioner in approaching this Court invoking
extraordinary discretionary jurisdiction under Article
226 of the Constitution of India was not entertainable.
The judgment impugned could not be successfully
challenged on merits.
13. However, it is sought to be submitted that the Writ
petition remained pending and was dismissed only on
08.02.2023, and, moreover, the reasoned order of
dismissal was not uploaded for about one year. As the
dismissal order was uploaded only on 09.05.2024, the
option with the petitioner to approach the alternative
forum of appeal stood frustrated. The contention is that
the impugned order passed by the learned Single judge
is liable to be set aside being without jurisdiction in view
of the judgment of the Apex Court in Ratilal Jhaverbhai
Parmar v. State of Gujarat [2024 SCC OnLine SC
2985].
14. Having noticed the above, once we find on an
independent appreciation of fact and the law pertaining
to the proceedings under the SARFAESI Act' 2002, that
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the challenge to the order dated 21.06.2022 passed by
the DRT in the writ petition was a calculated chance
taken by the petitioner, we only provide that the
petitioner is at liberty to file a statutory appeal under
Section 18 of the SARFAESI Act, 2002, if so advised. In
case such an appeal is filed, the third party in whose
favour rights have been created pursuant to the sale
deed dated 21.05.2020, viz. the respondent no.2 herein
would be necessary party apart from the respondent
Bank, which has initiated proceedings under the
SARFAESI Act, 2002. The appeal shall have to be filed
along with a proper application to explain the delay in
filing the same. In case such an appeal is filed along
with the delay condonation application, we further
provide that the time period spent in uploading the
judgment of dismissal by this Court between 08.02.2023
to 09.05.2024 which has caused prejudice to the
appellant, shall have to be excluded from the
computation of the period of delay. For the remaining
period of delay, the original petitioner/appellant herein
would have to furnish his explanation.
15. With the above, as we reach at the same conclusion as
arrived by the learned Single judge in the judgment
impugned, setting aside the same would serve no useful
purpose. Therefore, while modifying the judgment and
order dated 08.09.2023 passed by the learned Single
Judge, subject to the observations and directions made
above, the present appeal stands disposed of. No order
as to costs.
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Pending civil application, if any, stands disposed of.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
BIJOY B. PILLAI
