Madras High Court
Marutee Agro Foods vs The Authorised Officer on 2 November, 2021
W.P(MD)No.19865 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.19865 of 2021
and
W.M.P(MD)Nos.16582 and 16583 of 2021
Marutee Agro Foods,
represented by its Managing Partner,
M.Rajalakshmi,
W/o(Late)Maheswaran,
167/9/10, Mettur,
Peramangalam,
Musiri Taluk,
Trichy District. ... Petitioner
Vs.
1.The Authorised Officer,
Central Bank of India,
Regional Office,
No.54, First Floor,
West Bouldward Road,
Opp.Devar Hall,
Trichy – 620 008.
2.The Branch Manager,
Central Bank of India,
Srirangam Branch,
Trichy. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the order passed by the first respondent in
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1/10
W.P(MD)No.19865 2021
RO/RECV/TRIC/2021-22/dated 11.10.2021 and to quash the same
and further to direct the first respondent to postpone the E-auction
dated 29.10.2021 and to provide the Petitioner prior written
permission to visit the assets of rice mill along with investor, which
is under lock and key and to settle the bank dues within 60 days
from the date of prior permission within the time limit stipulated by
this Court.
For Petitioner : Mr.Ravichandran
for Mr.G.M.Xavier
For Respondents : Mr.R.Pandivel
ORDER
(Order of the Court was made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of Certiorarified Mandamus, to call for the records relating to the
order passed by the first respondent, dated 11.10.2021 and to
quash the same and further to direct the first respondent to
postpone the E-auction, dated 29.10.2021 and to provide the
Petitioner prior written permission to visit the assets of rice mill
along with investor, which is under lock and key and to settle the
bank dues within 60 days from the date of prior permission within a
time frame.
2.The Petitioner has challenged the auction sale notice, dated
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W.P(MD)No.19865 2021
11.10.2021 in this Writ Petition without resorting to the appeal
remedy available to them under Section 17 of the SARFAESI Act.
3.The Honourable Supreme Court of India in the following
Judgments have clearly held that the aggrieved party has to file an
appeal under Section 17 of the SARFAESI Act as against the
proceedings initiated under the SARFAESI Act and that a Writ
Petition filed under Article 226 of the Constitution of India
challenging the proceedings initiated under the SARFAESI Act is not
maintainable:-
(i) In United Bank of India Vs. Satyawati Tondon
reported in (2010) 8 SCC 110, the Honourable Supreme Court has
held as follows:-
“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 code unto themselves inasmuch as they not only contain
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W.P(MD)No.19865 2021
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.
.............
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 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.”
(ii) In Authorized Officer, State Bank of Travancore and
another Vs. Mathew K.C reported in (2018) 3 SCC 85, the
Honourable Supreme Court has held as follows:-
“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.
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W.P(MD)No.19865 2021
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.”
(iii) In C.Bright Vs. District Collector and others reported
in (2021) 2 SCC 392, the Honourable Supreme Court has held as
follows:-
“22.Even though, this Court in United Bank of India
v. Satyawati Tondon & Ors. held that in cases relating to
recovery of the dues of banks, financial institutions and
secured creditors, stay granted by the High Court would
have serious adverse impact on the financial health of such
bodies/institutions, which will ultimately prove detrimental
to the economy of the nation. Therefore, the High Court
should be extremely careful and circumspect in exercising
its discretion to grant stay in such matters. Hindon Forge
Private Limited has held that the remedy of an aggrieved
person by a secured creditor under the Act is by way of an
application before the Debts Recovery Tribunal, however,
borrowers and other aggrieved persons are invoking the
jurisdiction of the High Court under Articles 226 or 227 of
the Constitution of India without availing the alternative
statutory remedy. The Hon’ble High Courts are well aware
of the limitations in exercising their jurisdiction when
affective alternative remedies are available, but a word of
caution would be still necessary for the High Courts that
interim orders should generally not be passed without
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W.P(MD)No.19865 2021
hearing the secured creditor as interim orders defeat the
very purpose of expeditious recovery of public money.”
(iv) In ICICI Bank Limited and others Vs. Umakanta
Mohaptra and others reported in (2019) 13 SCC 497, the
Honourable Supreme Court has held as follows:-
“3.The writ petition itself was not maintainable, as a
result of which, in view of our recent judgment, which has
followed earlier judgments of this Court, held as follows:-
“17. We cannot help but disapprove the approach of
the High Court for reasons already noticed in Dwarikesh
Sugar Industries Ltd. vs. Prem Heavy Engineering Works
(P) Ltd. and Another, (1997) 6 SCC 450 , observing:-
'32. When a position, in law, is well settled as a
result of judicial pronouncement of this Court, it would
amount to judicial impropriety to say the least, for the
subordinate courts including the High Courts to ignore the
settled decisions and then to pass a judicial order which is
clearly contrary to the settled legal position. Such judicial
adventurism cannot be permitted and we strongly
deprecate the tendency of the subordinate courts in not
applying the settled principles and in passing whimsical
orders which necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is time that
this tendency stops.'”
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W.P(MD)No.19865 2021
4.The writ petition, in this case, being not
maintainable, obviously, all orders passed must perish,
including the impugned order, which is set aside.
5.The appeals are allowed in the aforesaid terms.
Pending applications, if any, shall stand disposed of.”
(v) In Agarwal Tracom Private Limited Vs. Punjab
National Bank and others reported in (2018) 1 SCC 626, the
Honourable Supreme Court has held as follows:-
“33. In the light of the foregoing discussion, we are
of the considered opinion that the Writ Court as also the
Appellate Court were justified in dismissing the appellant's
writ petition on the ground of availability of alternative
statutory remedy of filing an application under Section
17(1) of the SARFAESI Act before the Tribunal concerned to
challenge the action of PNB in forfeiting the appellant's
deposit under Rule 9(5). We find no ground to interfere
with the impugned judgment of the High Court.
34. The appellant is, accordingly, granted liberty to
file an application before the concerned Tribunal (DRT)
under Section 17(1) of the SARFAESI Act, which has
jurisdiction to entertain such application within 45 days
from the date of this order. In case, if the appellant files
any such application, the Tribunal shall decide the same on
its merits in accordance with law uninfluenced by any of
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W.P(MD)No.19865 2021
the observations made by this Court and the High Court in
the impugned judgment.”
Since the Petitioner had filed the present Writ Pedtition without
exhausting the appeal remedy available to them under Section 17
of the SARFAESI Act, we are not inclined to entertain the present
Writ Petition.
4.Mr.R.Pandivel, learned counsel for the respodnents/Bank
submitted that pursuant to the sale notice, dated 11.10.2021, the
sale was conducted on 29.10.2021 and the sale was confirmed in
favour of the auction purchaser on 1.11.2021.
5.For the reasons strated above, the Writ Petition stands
dismissed. No costs. Consequently, connected Miscellaneous
Petitions are dismissed.
[M.D.,J] [K.M.S.,J.]
02.11.2021
Index :Yes/No
Internet :Yes/No
vsn
Note :
In view of the present lock
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W.P(MD)No.19865 2021
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
1.The Authorised Officer,
Central Bank of India,
Regional Office,
No.54, First Floor,
West Bouldward Road,
Opp.Devar Hall,
Trichy – 620 008.
2.The Branch Manager,
Central Bank of India,
Srirangam Branch,
Trichy.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.19865 2021
M.DURAISWAMY,J.
and
K.MURALI SHANKAR,J.
vsn
W.P(MD)No.19865 of 2021
02.11.2021
https://www.mhc.tn.gov.in/judis/
