Madras High Court
R.Ganesan vs M/S.Asrec (India) Limited on 23 December, 2021
W.P.No.27644 of 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.12.2021
CORAM :
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.27644 of 2021 and
W.M.P.Nos.29183 & 29185 of 2021
R.Ganesan .. Petitioner
Vs.
1.M/s.ASREC (India) Limited,
Room No.3, III Floor,
Wellingdon Estate, 53,
Ethiraj Salai, Egmore,
Chennai – 600 008.
2.Kum Kum Malhotra
3.Viswanatha Menon
4.Sharada Menon
5.The Karur Vysya Bank Ltd.,
Main Branch, Kumaran Road,
Tirupur – 640 601. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of certiorarified mandamus to call for the
records relating to the proceedings of the learned Chief Judicial
Magistrate of Tiruppur District at Tiruppur in Crl.M.P.No.542/2020
https://www.mhc.tn.gov.in/judis
W.P.No.27644 of 2021
2
dated 11.11.2021 quash the same and consequently direct the 1st
respondent to deseal the premises described as Schedule B in the order of
the learned Magistrate in Crl.M.P.No.542/2020.
For Petitioner : Mr.R.N.Amarnath
ORDER
(ORDER OF THE COURT WAS MADE BY M.DURAISWAMY, J.)
The petitioner, who is the third party to the SARFAESI
proceedings has filed the Writ Petition challenging the order passed by
the Chief Judicial Magistrate of Tiruppur District at Tiruppur in
Crl.M.P.No.542/2020 dated 11.11.2021 and to quash the same and to
consequently direct the 1st respondent to deseal the premises described as
Schedule B in the order of the learned Magistrate in
Crl.M.P.No.542/2020.
2.The petitioner has challenged the order passed, under Section 14
of the SARFAESI Act, by the Chief Judicial Magistrate in
Crl.M.P.No.542 of 2020 in this Writ Petition without exhausting the
remedy available to him under Section 17 of the SARFAESI Act.
3.The Hon'ble Supreme Court in The Authorized Officer, State
https://www.mhc.tn.gov.in/judis
W.P.No.27644 of 2021
Bank of Travancore and another Vs. Mathew K.C., reported in (2018) 3
SCC 85 and Agarwal Tracom Private Limited Vs. Punjab National
Bank and others, reported in (2018) 1 SCC 626 held that the aggrieved
parties cannot challenge the SARFAESI proceedings directly by filing a
Writ Petition under Article 226 of the Constitution of India without
exhausting the appeal remedy available to them.
4.In a recent decision of the Supreme Court in ICICI Bank
Limited v. Umakanta Mohapatra, reported in 2018 SCC Online SC
2349, the Supreme Court has referred to the decision in Mathew K.C.
case, referred supra, and has observed that despite several judgments,
including the decision of Mathew K.C., cited supra, the High Courts
continue to entertain matters which arise under the SARFAESI Act and
keep granting interim orders in favour of persons who are Non-
Performing Assets. Further, the Supreme Court held that Writ Petition
filed by the aggrieved party without exhausting the statutory remedy
available under the SARFAESI Act and Recovery of Debts Due to Banks
and Financial Institutions Act, is not maintainable.
https://www.mhc.tn.gov.in/judis
W.P.No.27644 of 2021
5.In the case on hand, the petitioner has filed the Writ Petition
without exhausting the alternate remedy by way of an appeal available to
him under Section 17 of the SARFAESI Act. Following the ratio laid
down by the Supreme Court in the above referred judgments, we are not
inclined to entertain the Writ Petition. Accordingly, the Writ Petition is
dismissed. However, it is open to the petitioner to challenge the order
passed in Crl.M.P.No.542 of 2020 dated 11.11.2021 before the Debt
Recovery Tribunal in accordance with law, raising all the grounds
available to him. No costs. Consequently, the connected Miscellaneous
Petitions are closed.
Index : Yes/No [M.D., J.] [J.S.N.P., J.]
va 23.12.2021
M.DURAISWAMY, J.
https://www.mhc.tn.gov.in/judis
W.P.No.27644 of 2021
and
J.SATHYA NARAYANA PRASAD, J.
va
W.P.No.27644 of 2021 and
W.M.P.Nos.29183 & 29185 of 2021
23.12.2021
https://www.mhc.tn.gov.in/judis
