Madras High Court
A.Murugesan vs The Authorized Officer/ on 22 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)NO.16154 OF 2021
and
W.M.P(MD)Nos.13018 and 13019 of 2021
A.Murugesan :Petitioner
.vs.
1.The Authorized Officer/
Chief Manager,
Axis Bank Limited,
Arcot Plaza, Fourth Floor,
No.165, Arcot Road,
Kodambakkam,
Chennai – 600 024.
2.The Chief Judicial Magistrate,
Madurai. : Respondents
(R2-given up vide order of this Court made in
W.P(MD)No.16154 of 2021, dated 8.9.2021.)
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying this Court to issue a Writ of Certiorarified
Mandamus calling for the records pertaining to the impugned order
passed by the second respondent in Cr.M.P.No.294 of 2021, dated
3.8.2021 and to quash the same and further to direct the first
respondent to settle the loan obtained by the Petitioner under Agri
Loan A/C.Nos. CCAGR917060046697540 and
CCAGR915030031568009 within the time frame fixed by this
Court based on the Petitioner's representation,27.08.2021.
https://www.mhc.tn.gov.in/judis/
2
For Petitioner :Mr.T.Selvan
For Respondent-1 :Mr.Pethu Rajesh
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 calling for the records pertaining to
the impugned order passed by the second respondent in
Cr.M.P.No.294 of 2021, dated 3.8.2021 and to quash the same and
consequently to direct the first respondent to settle the loan
obtained by the Petitioner within a time frame considering the
Petitioner's representation, 27.08.2021.
2.The Petitioner has challenged the order passed by the Chief
Judicial Magistrate in Cr.M.P.No.Cr.M.P.No.294 of 2021, dated
3.8.2021 without exhausing the alternative remedy by way of
appeal under Section 17 of the SARFAESI ACT.
3.The Honourable Supreme Court of India in the following
Judgments have clearly held 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
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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 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
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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.
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
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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
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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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 challenge the action of PNB in forfeiting the appellant's
deposit under Rule 9(5). We find no ground to interfere
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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 filed the above Writ Petition
without exhausting the alternative remedy of appeal under
Section 17 of the SARFAESI Act, we are not inclined to entertain
the present Writ Petition.
5.Following the ratio laid down by the Honourable Supreme
Court of India in the judgments cited supra, the Writ Petition is
liable to be dismissed and accordingly, the same stands
dismissed.No costs. It is open to the Petitioner to challenge the
order passed by the Chief Judicial Magistrate before the Debts
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Recovery Tribunal under Section 17 of the SARFAESI Act, in
accordance with law. Consequently, connected Miscellaneous
Petitions are dismissed.
[M.D.,J.] & [K.M.S.,J.]
22.09.2021
Index:Yes/No
Internet:Yes/No
vsn
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.
https://www.mhc.tn.gov.in/judis/
M.DURAISWAMY, J.
AND
K.MURALI SHANKAR, J.
vsn
0RDER MADE IN
W.P(MD)NO.16154 OF 2021
and
W.M.P(MD)Nos.13018 and
13019 of 2021
22.09.2021
https://www.mhc.tn.gov.in/judis/
