Madras High Court
T.Sahaya Nevi vs The Authorised Officer / Chief ... on 6 February, 2023
W.P(MD)No.23158 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.02.2023
CORAM :
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.23158 of 2022
and
WMP(MD)No.17257 of 2022
T.Sahaya Nevi ... Petitioner
vs.
The Authorised Officer / Chief Manager,
Reliance Commercial Finance Ltd.,
Plot No.10, Vishnu Plaza, Vaigai Colony,
80 Feet Road, Anna Nagar,
Madurai-625 020. ... Respondent
PRAYER : Writ Petition filed under Article 226 of the
Constitution of India, for issuance of a Writ of Certiorari, calling for the
records relating to the impugned possession notice dated 04.08.2022
issued by the respondents and quash the same as illegal.
For Petitioner : Mr.K.P.Pandian
For Respondent : Mr.K.Gokul
1/11
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W.P(MD)No.23158 of 2022
ORDER
(Order of the Court was made by D.KRISHNAKUMAR, J)
Challenging the possession notice dated 04.08.2022, the
petitioner has filed this writ petition.
2. Today, when the writ petition was taken up for hearing,
learned counsel for the respondent submitted that the petitioner has
not complied with the conditional interim order granted by this Court
on 30.09.2022. He further submitted that the petitioner is having
effective alternate appeal remedy before the Debts Recovery Tribunal
and the Debts Recovery Tribunal, Coimbatore, is in-charge of the
Debts Recovery Tribunal, Madurai. Hence, the petitioner has to
approach the Debts Recovery Tribunal for appropriate relief.
3. In view of the above submission of the learned counsel
appearing for the respondent – Bank, we are of the view that the
petitioner has to approach the Debts Recovery Tribunal by filing an
appeal and work out her remedy in accordance with law.
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W.P(MD)No.23158 of 2022
4. At this juncture, it would be relevant to refer the following
decisions:-
(i) In United Bank of India v. Satyawati Tondon, (2010)
8 SCC 110, the Hon'ble Supreme Court has held as follows:-
"42. There is another reason why the impugned order
should be set aside. If Respondent 1 had any tangible
grievance against the notice issued under Section 13(4) or
action taken under Section 14, then she could have availed
remedy by filing an application under Section 17(1). The
expression "any person" used in Section 17(1) is of wide
import. It takes within its fold, not only the borrower but
also the guarantor or any other person who may be
affected by the action taken under Section 13(4) or Section
14. Both, the Tribunal and the Appellate Tribunal are
empowered to pass interim orders under Sections 17 and
18 and are required to decide the matters within a fixed
time schedule. It is thus evident that the remedies
available to an aggrieved person under the SARFAESI Act
are both expeditious and effective.
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
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W.P(MD)No.23158 of 2022
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 a 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 giievance of any aggrieved person. Therefore, in all
such cases, the 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.''
(ii) In Kanaiyalal Lalchand Sachdev v. State of
Maharashtra(2011) 2 SCC 782, the Apex Court has held as
follows:-
''23. In our opinion, therefore, the High Court rightly
dismissed the petition on the ground that an efficacious
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W.P(MD)No.23158 of 2022
remedy was available to the appellants under Section 17 of
the Act. It is well settled that ordinarily relief under
Articles 226/227 of the Constitution of India is not available
if an efficacious alternative remedy is available to any
aggrieved person. (See Sadhana Lodh v. National
Insurance Co. Ltd. [(2003) 3 SCC 524 : 2003 SCC (Cri)
762] , Surya Dev Rai v. Ram Chander Rai [(2003) 6 SCC
675] and SBI v. Allied Chemical Laboratories [(2006) 9
SCC 252].)"
(iii) In ICICI Bank Ltd. v. Umakanta Mohapatra, (2019)
13 SCC 497 : (2018) 5 SCC (Civ) 812: 2018 SCC OnLine SC
2349, the Hon'ble Supreme Court has held as follows:-
"2. Despite several judgments of this Court, including
a judgment by Hon'ble Navin Sinha, J., as recently as on
30-1-2018, in State Bank of Travancore v. Mathew K.C.
[State Bank of Travancore v. Mathew K.C., (2018) 3 SCC
85 : (2018) 2 SCC (Civ) 41] , the High Courts continue to
entertain matters which arise under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI), and keep granting
interim orders in favour of persons who are non-performing
assets (NPAs)."
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W.P(MD)No.23158 of 2022
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:
(SCC p. 94, para 17)
"17. We cannot help but disapprove the
approach of the High Court for reasons already noticed in
Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering
Works (P) Ltd. [Dwarikesh Sugar Industries Ltd. v. Prem
Heavy Engineering Works (P) Ltd., (1997) 6 SCC 450] ,
observing: (SCC p. 463, para 32)
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
and unwarranted relief to one of the parties. It is time that
this tendency stops.''
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W.P(MD)No.23158 of 2022
(iv) In Agarwal Tracom (P) Ltd. v. Punjab National Bank
(2018) 1 SCC 626, the Apex 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."
(v) In C. Bright v. Distt. Collector (2021) 2 SCC 392, the
Hon'ble Supreme Court has held as follows:-
"22. Even though, this Court in United Bank of India
v. Satyawati Tondon [United Bank of India v. Satyawati
Tondon, (2010) 8 SCC 110 (2010) 3 SCC (Civ) 260] 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.
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W.P(MD)No.23158 of 2022
Therefore, the High Court should be extremely careful and
circumspect in exercising its discretion to grant stay in such
matters. Hindon Forge (P) Ltd. [Hindon Forge (P) Ltd. v.
State of U.P., (2019) 2 SCC 198 : (2019) 1 SCC (Civ) 551]
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
effective 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."
(vi) In S.Ganesamoorthi Vs. The Branch Manager & Ors.,
W.P.(MD).No.22536 of 2021, dated 20.12.2021, the Hon'ble First
Bench of this Court has held that though Presiding officer is not
available in DRT, Madurai, incharge is given to Coimbatore and
therefore, liberty is given to writ petitioner to move DRT, Coimbatore.
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W.P(MD)No.23158 of 2022
(vii) As regards the non-maintainability of the writ petition
against Private financial institutions like asserts re-construction
companies in respect of their action under SARFAESI Act, it is relevant
to consider the decision of the Hon'ble Supreme Court in Phoenix
ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345
: 2022 SCC OnLine SC 44, wherein, it has been held as follows:-
''18. Even otherwise, it is required to be noted that a
writ petition against the private financial institution — ARC
— the appellant herein under Article 226 of the
Constitution of India against the proposed action/actions
under Section 13(4) of the SARFAESI Act can be said to be
not maintainable. In the present case, the ARC proposed to
take action/actions under the SARFAESI Act to recover the
borrowed amount as a secured creditor. The ARC as such
cannot be said to be performing public functions which are
normally expected to be performed by the State
authorities. During the course of a commercial transaction
and under the contract, the bank/ARC lent the money to
borrowers herein and therefore the said activity of the
bank/ARC cannot be said to be as performing a public
function which is normally expected to be performed by the
State authorities. If proceedings are initiated under the
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W.P(MD)No.23158 of 2022
SARFAESI Act and/or any proposed action is to be taken
and the borrower is aggrieved by any of the actions of the
private bank/bank/ARC, borrower has to avail the remedy
under SARFAESI Act and no writ petition would lie and/or is
maintainable and/or entertainable. Therefore, decisions of
this Court in Praga Tools Corpn. [Praga Tools Corpn. v. C.A.
Manual, (1969) 1 SCC 585] and Ramesh Ahiuwalia
[Ramesh Ahluwalia v. State of Punjab, (2012; 12 SCC
331 : (2013) 3 SCC (L&S) 456: 4 SCEC 715] relied upon
by the learned counsel appearing on behalf of the
borrowers are not of any assistance to the borrowers."
5. We are of the view that without exhausting the remedy
before the Debts Recovery Tribunal, the petitioner cannot invoke the
remedy under Article 226 of the Constitution. Therefore, the Writ
Petition is dismissed with liberty to the petitioner to approach the
Debts Recovery Tribunal, for appropriate remedy. No costs.
Consequently, connected miscellaneous petition is closed.
NCC : Yes / No [D.K.K.,J.] & [R.V.,J.]
Index : Yes / No 06.02.2023
Internet : Yes
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W.P(MD)No.23158 of 2022
D.KRISHNAKUMAR, J.
and
R.VIJAYAKUMAR, J.
bala
ORDER MADE IN
W.P(MD)No.23158 of 2022
DATED : 06.02.2023
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