Madras High Court
Mrs.Saraswathi vs Bank Of India on 8 August, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.23066 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.08.2024
CORAM:
THE HON'BLE MR.D.KRISHNAKUMAR
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.P.No.23066 of 2024 and
W.M.P.Nos.25161 & 25163 of 2024
1. Mrs.Saraswathi
2. B. Lakshmi Pathi Raj ... Petitioners
-vs-
Bank of India,
Rep. by its Chief Manager and Authorized Officer,
Gandhipuram Branch,
No.41/46, Ground Floor,
DBMS Arakattalai Building Complex,
7th Street, Tatabad,
Coimbatore-641 012. ... Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance
of a Writ of Certiorarified Mandamus, calling for the records pertaining to the
impugned e-auction Sale Notice vide Ref.No.ZO/CBE/RD/SARFAESI/2024-25/VA/07
dated 20.07.2024 and quash the same as arbitrary and illegal and further forbear the
respondent from conducting forthcoming e-auction.
For Petitioners : Mr.Harish Kumar
*****
1/6
https://www.mhc.tn.gov.in/judis
W.P.No.23066 of 2024
ORDER
(By the Hon'ble Acting Chief Justice)
This Writ Petition has been filed, seeking to quash the e-auction sale notice
dated 20.07.2024, issued vide Ref.No.ZO/CBE/RD/SARFAESI/2024-25/VA/07, by
which the properties of the petitioners were brought for auction.
2. On going through the averments made in the affidavit and the relief
sought for, we are of the view that the petitioners have challenged the auction notice
issued by the respondent Bank, which is per se not maintainable before this Court in
terms of the judgment of the Apex Court in the case of Phoenix ARC Private Limited
vs. Vishwa Bharati Vidya Mandir and others, reported in (2022) 5 SCC 345, holding
that any Writ Petition filed against the proposed action to be taken under Section 13(4)
of the SARFAESI Act, 2002 is an abuse of process of the Court in view of the statutory,
efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act.
In yet another recent judgment passed in South Indian Bank Ltd and others vs. Naveen
Mathew Philip and another, reported in MANU/SC/0400/2023, the Supreme Court has
reiterated its earlier decision.
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3. Following the dictum laid down by the Supreme Court (supra), this Court, in
which both of us are parties, passed an order dated 05.08.2024 in W.P.No.21799 of
2024, dismissing the Writ Petition filed against such notice. For the sake convenience,
the relevant Paragraph Nos.4 to 7 of the judgment of this Court are extracted hereunder:
“4. The Supreme Court in the case of 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.
5. In ICICI Bank Limited v. Umakanta Mohapatra, reported in
2018 SCC Online SC 2349, 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.,
supra, the High Courts continue to entertain matters which arise under
the SARFAESI Act and keep granting interim orders in favour of
persons whose accounts are declared as 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 is not maintainable.
6. In Phoenix ARC Private Limited v. Vishwa Bharati Vidya
Mandir and others, (2022) 5 SCC 345, after taking note of various
earlier decisions, the Apex Court held that writ petitions at the instance
of borrowers against the proposed action to be taken under Section
13(4) of the SARFAESI Act, 2002 is an abuse of process of the Court
in view of the statutory, efficacious remedy available by way of appeal
under Section 17 of the SARFAESI Act. It was further held that under
such situation the High Court ought not to have entertained the writ
petitions. The relevant portion of the said decision reads thus:
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"10. In Union Bank of India v. Satyawati Tandon, (2010) 8
SCC 110, it was observed and held by this Court that the
remedies available to an aggrieved person against the action
taken under Section 13(4) or Section 14 of the SARFAESI
Act, by way of appeal under Section 17, can be said to be
both expeditious and effective.
...
12. In the case of Kanaiyalal Lalchand Sachdev v. State of
Maharashtra, (2011) 2 SCC 782, after referring to the earlier
decisions of this Court in the cases of Sadhana Lodh Vs.
National insurance Co. Ltd. and Anr., (2003) 3 SCC 524;
Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6
SCC 675 and State Bank of India Vs. Allied Chemical
Laboratories and Anr., (2006) 9 SCC 252 while upholding
the order passed by the High Court dismissing the writ
petition on the ground that an efficacious remedy is
available under Section 17 of the SARFAESI Act, it was
observed 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.”
[emphasis supplied]
7. Very recently, the Apex Court in the case of South Indian
Bank Ltd and others v. Naveen Mathew Philip and another,
MANU/SC/0400/2023, deprecated the practice adopted by the High
Courts whereby the writ petitions are being entertained as against
proceedings initiated by the secured creditor under SARFAESI Act and
further held that when the statute prescribes a particular mode, an
attempt to circumvent should not be encouraged by the writ Court.”
4. In view of the authoritative pronouncement of the Supreme Court in a catena of
judgments, which has been followed by this Court, we are of the view that the instant
Writ Petition is not maintainable before this Court and is liable to be dismissed.
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5. Accordingly, this Writ Petition is dismissed. It is open to the petitioners
to work out their remedy available under Section 17 of the SARFAESI Act before the
appropriate forum. Registry is directed to return all the papers to the petitioners
forthwith after retaining xerox copies of the same. No costs.
[D.K.K.,ACJ.] [P.B.B,J.]
08.08.2024
Index: Yes / No
Internet: Yes / No
Speaking Order/Non Speaking Order
ar
https://www.mhc.tn.gov.in/judis
HON'BLE ACTING CHIEF JUSTICE,
AND
P.B.BALAJI,J.,
ar
08.08.2024
https://www.mhc.tn.gov.in/judis
