Madras High Court
S.Pandiyakumari vs The Lakshmi Vilas Bank on 7 October, 2021
W.P(MD)No.18314 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.18314 of 2021
and
W.M.P(MD)No.15141 of 2021
S.Pandiyakumari ... Petitioner
Vs.
1.The Lakshmi Vilas Bank,
Represented by its Authorized Officer,
S.Rajakumar,
Tallakulam Branch,
No.96, Alagar Kovil Road,
Opposite to American College,
Madurai.
2.E.Rajeswari,
Advocate – Commissioner,
C/o.The Lakshmi Vilas Bank,
Tallakulam Branch,
No.96, Alagar Kovil Road,
Opposite to American College,
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, forbearing the respondents
herein, their men, agents or any one on their behalf from in any
manner taking forcible possession of items 1, 2 and 3 of secured
properties more fully described in Cr.M.P.No.325 of 2020 on the file
of the Chief Judicial Magistrate, Madurai, without following due
process of law and consequently direct the learned Chief Judicial
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W.P(MD)No.18314 of 2021
Magistrate, Madurai to consider the objections of the petitioner in
accordance with law and as settled by the Hon'ble Supreme Court of
India.
For Petitioner : Mr.K.Appadurai
For R – 1 : Mr.SI.Muthiah
ORDER
(Order of the Court was made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of Mandamus, forbearing the respondents from taking forcible
possession of item Nos.1, 2 and 3 of secured properties more fully
described in Cr.M.P.No.325 of 2020 on the file of the Chief Judicial
Magistrate, Madurai, without following due process of law and
consequently directing the Chief Judicial Magistrate, Madurai to
consider the objections of the petitioner in accordance with law.
2.Mr.SI.Muthiah, learned counsel appearing for the first
respondent submitted that the Chief Judicial Magistrate, Madurai,
had already passed an order in Cr.M.P.No.325 of 2020 on
30.07.2021 and that the petitioner without challenging the same
has filed the above Writ Petition for a Mandamus.
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W.P(MD)No.18314 of 2021
3.It is settled position that if a borrower or a guarantor is
aggrieved over the order passed under the provisions of the
SARFEASI Act, the remedy open to the petitioner is only to file an
appeal under Section 17 of the SARFEASI Act before the Debts
Recovery Tribunal. The petitioner, without challenging the order
passed by the Chief Judicial Magistrate, Madurai, has filed the
present Writ Petition to forbear the respondents from taking
possession of the properties.
4.The Hon'ble Supreme Court of India in the following
Judgments held that the aggrieved party should only file an appeal
under Section 17 of the SARFAESI Act and not a Writ Petition under
Article 226 of the Constitution:-
(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
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W.P(MD)No.18314 of 2021
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
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
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W.P(MD)No.18314 of 2021
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.”
(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
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W.P(MD)No.18314 of 2021
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
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
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W.P(MD)No.18314 of 2021
and unwarranted relief to one of the parties. It is time that
this tendency stops.'”
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.
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
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W.P(MD)No.18314 of 2021
any such application, the Tribunal shall decide the same on
its merits in accordance with law uninfluenced by any of
the observations made by this Court and the High Court in
the impugned judgment.”
From the above Judgments of the Honourable Supreme Court, it is
clear that a Writ Petition filed by a party challenging the proceedings
initiated under the SARFAESI Act is not maintainable.
5.In view of the Judgments of the Honourable Supreme Court,
we are not inclined to entertain the Writ Petition. Accordingly, the
Writ Petition is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
[M.D.,J] [K.M.S.,J.]
07.10.2021
Index :Yes/No
Internet :Yes/No
ps
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W.P(MD)No.18314 of 2021
Note :
In view of the present lock
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
The Authorized Officer,
The Lakshmi Vilas Bank,
S.Rajakumar,
Tallakulam Branch,
No.96, Alagar Kovil Road,
Opposite to American College,
Madurai.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.18314 of 2021
M.DURAISWAMY,J.
and
K.MURALI SHANKAR,J.
ps
W.P(MD)No.18314 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis/
