Madras High Court
M/S. Dark Tex vs Unknown on 12 April, 2022
W.P. No.8870 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.04.2022
CORAM :
THE HON'BLE MR. JUSTICE M. DURAISWAMY
AND
THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI
W.P. No.8870 of 2022 and
W.M.P.Nos. 8705 & 8706 of 2022
M/s. Dark Tex,
Represented by its Partner,
Shri S.K. Thangamuthu, S/o. Kaithamalai
4/58 Nadupatti Po.,Vijayamangalam,
Avinashi Tk., Tirupur – 638 056. .. Petitioner
v.
1. The Authorized Officer,
Karnataka Bank Limited,
Asset Recovery Management Branch,
No.324, Ground Floor,
Thambu Chetty Street, Chennai.
2. Mrs. Muthusamy Priyadharshini .. Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying for issue of Writ of declaration, declaring the act of the 1st
respondent in issuing the E-Auction sale notice dated 12.05.2021,
conducting the sale on 06.07.2021, confirming the sale on 09.07.2021,
issuing sale certificate if Ny, taking possession of the immovable
property through order of the Chief Judicial Magistrate in
Crl.M.P.No.836 of 2021, dated 15.12.2021 without considering the
petitioner offer for repayment of dues due to the bank vide letters dated
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W.P. No.8870 of 2022
20.02.2021, 08.03.2021 are all unconstitutional, illegal, done by abuse of
process of law, arbitrary, done in violation of Section 13(8) of the
Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act 2002 read with Article e300-a of the
Constitution of India, null and void, consequently direct thee
respondents to restore the possession and title with respect to the
immovable properties described in the E-Auction sale notice dated
12.05.2021 of the 1st respondent by accepting the amount and other
charges payable by the petitioner that may be determined by this court.
For Petitioner : Mr.R.Selvakumar
ORDER
(Order of the Court made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of declaration, declaring the act of the 1st respondent in issuing the
E-Auction sale notice dated 12.05.2021, conducting the sale on
06.07.2021, confirming the sale on 09.07.2021, issuing sale certificate,
taking possession of the immovable property through order of the Chief
Judicial Magistrate in Crl.M.P.No.836 of 2021, dated 15.12.2021 without
considering the petitioner's offer for repayment of dues to the bank vide
letters dated 20.02.2021, 08.03.2021 are all unconstitutional, illegal,
done by abuse of process of law, arbitrary, done in violation of Section
13(8) of the Securitisation and Reconstruction of Financial Assets and
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W.P. No.8870 of 2022
Enforcement of Security Interest Act, 2002 read with Article 300-A of
the Constitution of India, null and void, consequently directing the
respondents to restore the possession and title with respect to the
immovable properties described in the E-Auction sale notice dated
12.05.2021 of the 1st respondent by accepting the amount and other
charges payable by the petitioner that may be determined by this court.
2. The petitioner has challenged the E-Auction sale notice dated
12.05.2021, the sale conducted on 06.07.2021, the confirmation of sale
on 09.07.2021 and the order of the Chief Judicial Magistrate under
section 14 of the SARFAESI Act in the above Writ Petition.
3. It is settled law that remedy open to the aggrieved party is
only to file an appeal under section 17 of the SARFAESI Act before the
Debts Recovery Tribunal. In the case on hand, the petitioner without
exhausting the alternative remedy available to him under section 17 of
the SARFAESI Act has filed the above writ petition under Article 226 of
the Constitution of India.
4.1. The Hon'ble Supreme Court of India, in the judgments
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W.P. No.8870 of 2022
reported in 2018 (3) Supreme Court Cases 85 [Authorized Officer,
State Bank of Travancore and another Vs. Mathew K.C.], and 2018
(1) Supreme Court Cases 626 [Agarwal Tracom Private Limited Vs.
Punjab National Bank and others] 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.
4.2 In a decision of the Hon'ble Supreme Court dated 05.10.2018
in ICICI Bank Limited v. Umakanta Mohapatra, Civil Appeal
Nos.10251 – 10265 of 2018 arising out of SLP (C) Nos.16758 – 16772
of 2015, the Supreme Court has referred to the decision in Authorized
Officer, State Bank of Travancore and Anr. vs. Mathew K.C., (2018)
3 SCC 85 and has observed that despite several judgments, including
the decision of Mathew K.C., supra, the High Courts continue to
entertain matters which arise under the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002 (in
short 'SARFAESI') and keep granting interim orders in favour of persons
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W.P. No.8870 of 2022
who are Non-Performing Assets. Further, the Apex 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.
5. Since the petitioner has filed the Writ Petition without
exhausting the alternate remedy available to him under section 17 of the
SARFAESI Act, 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 impugned order under section 17 of the
SARFAESI Act, in accordance with law. No costs. Consequently, the
connected Miscellaneous Petitions are closed.
[M.D., J.] [T.V.T.S., J.]
12.04.2022
Index : Yes/No
Speaking Order/Non Speaking Order
Note : Issue order copy by 13.04.2022
Rj
To
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W.P. No.8870 of 2022
The Authorized Officer,
Karnataka Bank Limited,
Asset Recovery Management Branch,
No.324, Ground Floor,
Thambu Chetty Street,
Chennai
M. DURAISWAMY, J.
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W.P. No.8870 of 2022
and
T.V. THAMILSELVI, J.
Rj
W.P. No.8870 of 2022 and
W.M.P.Nos. 8705 & 8706 of 2022
12.04.2022
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