Madras High Court
Mohamed Kasim Shafeeq vs The Regional Manager on 21 October, 2021
W.P(MD)No.18851 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.18851 of 2021
and
W.M.P(MD)Nos.15676 and 15677 of 2021
Mohamed Kasim Shafeeq,
S/o.Late. M.Mohammed Kabir,
Director in M/s.Hycount Polymers Private Limited
also Partner in M/s.M.M.Shafeeq Agencies,
D.No.157/1, Old No.25A2,
Fathima Street,
Nagercoil – 629 002.
Kanyakumari District ... Petitioner
Vs.
1.The Regional Manager,
Union Bank of India,
The Regional Head Office,
No.72, P.T.Rajan,
Bibikulam,
Madurai.
2.The Chief Manager,
Union Bank of India,
Vadasery Branch,
M.S.Road,
Nagercoil,
Kanyakumari District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari calling for the records from the
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W.P(MD)No.18851 of 2021
respondents relating to the impugned e-auction Sale Notice fixing
e-auction on 22.10.2021 which is downloaded and to quash the
same.
For Petitioner : Mr.G.Sankaran
for Mr.K.Sathiya Singh
For Respondents : Mr.N.Dilip Kumar
1 and 2
ORDER
(Order of the Court was made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of Certiorari calling for the records on the file of the respondents
relating to the impugned e-auction Sale Notice fixing e-auction on
22.10.2021 and to quash the same.
2.The Petitioner has challenged the e-auction Sale Notice in
this Writ Petition under Article 226 of the Constitution of India.
3.The Honourable Supreme Court of India in the following
judgments held that the Writ Petition filed by an aggrieved party
challenging the SARFAESI proceedings 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:-
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W.P(MD)No.18851 of 2021
“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
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.”
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W.P(MD)No.18851 of 2021
(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.
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
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W.P(MD)No.18851 of 2021
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
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
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W.P(MD)No.18851 of 2021
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.'”
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
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W.P(MD)No.18851 of 2021
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
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 challenging the proceedings initiated under
the SARFAESI Act is not maintainable.
4.Since the Petitioner has challenged the SARFAESI
proceedings without exhausting the alternative remedy available to
him under Section 17 of the SARFAESI Act, following the ratio laid
down by the Honourable Supreme Court of India, we are not
inclined to entertain the present Writ Petition.
5.Accordingly, the Writ Petition stands dismissed. No costs.
However it is open to the Petitioner to challenge the e-auction Sale
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W.P(MD)No.18851 of 2021
Notice before the appropriate Debts Recovery Tribunal under
Section 17 of the SARFAESI Act. Consequently, connected
Miscellaneous Petitions are dismissed.
[M.D.,J] [K.M.S.,J.]
21.10.2021
Index :Yes/No
Internet :Yes/No
vsn
Note :
1.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.
2.Issue order copy on
21.10.2021(today)
To
1.The Regional Manager,
Union Bank of India,
The Regional Head Office,
No.72, P.T.Rajan,
Bibikulam,
Madurai.
2.The Chief Manager,
Union Bank of India,
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.18851 of 2021
Vadasery Branch,
M.S.Road,
Nagercoil,
Kanyakumari District.
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.18851 of 2021
M.DURAISWAMY,J.
and
K.MURALI SHANKAR,J.
vsn
W.P(MD)No.18851 of 2021
and
W.M.P(MD)Nos.15676 and
15677 of 2021
21.10.2021
https://www.mhc.tn.gov.in/judis/
