Madras High Court
A.S.Prasad vs State Bank Of India on 16 September, 2022
W.P.No.25065 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 16.09.2022
CORAM:
THE HON'BLE MR.M.DURAISWAMY,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
W.P.No.25065 of 2022
and W.M.P.Nos.24017, 24020, 24022 & 24024 of 2022
1.A.S.Prasad
2.Sri Lakshmi Prasad ... Petitioners
Vs.
State Bank of India,
Asset Recovery Management Branch,
rep by its Authorized Officer,
No.44, Eldams Road, 1st Floor,
Teynampet, Chennai - 600 018. ... Respondent
Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of writ of certiorarified mandamus to call for the
records of the e-auction sale notice for sale of immovable assets under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 read with proviso to Rule 8(6) of the Security
Interest (Enforcement) Rules, 2002 dated 03.08.2022
(Ref.No.:SBI/ARMB/SARFAESI/2022-23) for sale of the residential flat
bearing Flat No.1033 with super built-up area of 1860 sq.ft. (Plinth area
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W.P.No.25065 of 2022
plus a proportionate common area) in the 3rd level in Tower 1 of the
building project named 'Estancia' along with a covered car parking
together with 564 sq.ft. undivided share of vacant land out of and forming
part of land situated at No.51, Vallancheri Village, Chengalpet Taluk,
Kancheepuram District, measuring an extent of 3036 cents equivalent to
13,22,699 sq.ft. and No.54, Potheri Village, Chengalpet Taluk,
Kancheepuram District, measuring an extent of 71 cents equivalent to
30,928 sq.ft. issued by the respondent bank scheduling e-auction on
21.09.2022 and quash the same and direct the respondent to reverse the
excess interest of Rs.13,91,367.84 debited from the loan accounts of the
petitioners (Housing Loan A/C No.62092727469 and Housing Loan A/c
No.62135214577) to the respective accounts of the petitioners and all
acts done in furtherance thereof.
For Petitioners : Ms.R.Prem Raja Kumari
ORDER
(Order of the Court was made by the Hon'ble Acting Chief Justice)
The petitioners, who are the borrowers, have filed the above Writ
Petition to issue a Writ of certiorarified mandamus to call for the records
of the e-auction sale notice for sale of immovable assets under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 read with proviso to Rule 8(6) of the Security
Interest (Enforcement) Rules, 2002 dated 03.08.2022 for sale of the
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W.P.No.25065 of 2022
residential flat issued by the respondent bank scheduling e-auction on
21.09.2022 and to quash the same and to direct the respondent to reverse
the excess interest of Rs.13,91,367.84 debited from the loan accounts of
the petitioners to the respective accounts of the petitioners and all acts
done in furtherance thereof.
2.Though the petitioners have got remedy by way of an appeal
under Section 17 of the SARFAESI Act before the Debts Recovery
Tribunal, the petitioners have filed the above Writ Petition without
exhausting the alternate remedy.
3.The Hon'ble Supreme Court in The Authorized Officer, State
Bank of Travancore and another Vs. Mathew K.C., reported in (2018)
3 SCC 85 and Agarwal Tracom Private Limited Vs. Punjab National
Bank and others, reported in (2018) 1 SCC 626 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.
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W.P.No.25065 of 2022
4.In the decision of the Supreme Court in ICICI Bank Limited v.
Umakanta Mohapatra, reported in (2019) 13 Supreme Court Cases
497, the Supreme Court has referred to the decision in Mathew K.C. case,
referred supra, and has observed that despite several judgments,
including the decision of Mathew K.C., cited supra, the High Courts
continue to entertain matters which arise under the SARFAESI Act and
keep granting interim orders in favour of persons who are Non-
Performing Assets. Further, the Supreme 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.The Hon'ble Supreme Court, in the judgments referred above,
held that a Writ Petition filed under Article 226 of the Constitution by the
aggrieved party challenging the proceedings initiated under SARFAESI
Act is not maintainable.
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W.P.No.25065 of 2022
6.Since the petitioners have filed the above Writ Petition without
exhausting the alternate remedy available to them under Section 17 of the
SARFAESI Act, following the ratio laid down by the Hon'ble Supreme
Court, cited supra, we are not inclined to entertain the Writ Petition.
Accordingly, the Writ Petition is dismissed. No costs. Consequently, the
connected Miscellaneous Petitions are closed.
Index : Yes/No [M.D., ACJ.] [S.M., J.]
va 16.09.2022
To
The Authorized Officer,
State Bank of India,
Asset Recovery Management Branch,
No.44, Eldams Road, 1st Floor,
Teynampet, Chennai - 600 018.
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W.P.No.25065 of 2022
M.DURAISWAMY, ACJ.
and
SUNDER MOHAN, J.
va
W.P.No.25065 of 2022
and W.M.P.Nos.24017, 24020,
24022 & 24024 of 2022
16.09.2022
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