Madras High Court
Mrs.L.Bhuvaneshwari vs The Authorised Officer on 1 February, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar, R.Vijayakumar
W.P.(MD) No.2038 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
and
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD) No.2038 of 2024
and W.M.P.(MD) No.2048 of 2024
Mrs.L.Bhuvaneshwari ... Petitioner
-vs-
The Authorised Officer,
Reliance Commercial Finance Limited,
Ampa Manor, No.107/2, 3rd Floor,
Nelson Manickam Road,
Chennai – 600 029. ... Respondent
PRAYER: Petition filed under Article 226 of the Constitution of India, praying to
issue a Writ of Certiorari, to call for the records relating to the impugned Demand
Notice dated 27.01.2022, issued by the Respondent under Section 13(2) of
SARFAESI Act, 2002 and quash the same.
For Petitioner : Mr.G.Vairavasubramanian
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W.P.(MD) No.2038 of 2024
ORDER
[Order of the Court was made by D.KRISHNAKUMAR, J.]
This Writ Petition has been filed challenging the Demand Notice
dated 27.01.2022, issued by the Respondent under Section 13(2) of Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (SARFAESI Act, 2002).
2. According to the petitioner, the impugned notice has not furnished
the details of the amount payable by the petitioner and therefore, the impugned
notice is illegal. Therefore, the petitioner has come forward with this Writ
Petition.
3. A perusal of Section 13(3A) of SARFAESI Act, 2002, clearly
shows that if, on receipt of the notice under sub-section (2), the borrower makes
any representation or raises any objection, the secured creditor shall consider
such representation or objection and if the secured creditor comes to the
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conclusion that such representation or objection is not acceptable or tenable, he
shall communicate within fifteen days of receipt of such representation or
objection the reasons for non-acceptance of the representation or objection to the
borrower. Therefore, when a specific provision is available under the Act to make
representation or raises any objection, the petitioner has to approach the
concerned authority with the representation or objections. However, without
making any representation or objections, the petitioner has approached this Court
with this Writ Petition.
4. Further, this writ petition is not maintainable in view of the
following judgments:-
(i) In ICICI Bank Limited and Others Vs. Umakanta
Mohapatra and Others reported in 2019 (13) SCC 497, the Hon'ble
Supreme Court in paragraph Nos.2 & 3 has held as follows:
“2. Despite several judgments of this Court, including a
judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on
30.01.2018, in Authorized Officer, State Bank of Travancore and
Anr. v. Mathew K.C., MANU/SC/0054/2018 : (2018) 3 SCC 85, the
High Courts continue to entertain matters which arise under the
Securitisation and Reconstruction of Financial Assets and
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Enforcement of Security Interest Act, 2002 (SARFAESI), and keep
granting interim orders in favour of persons who are Non-
Performing Assets (NPAs). 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. v.
Prem Heavy Engineering Works (P) Ltd. and Anr.
MANU/SC/0639/1997 : (1997) 6 SCC 450, observing:
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”.
(ii) In C.Bright Vs. The District Collector and Others
reported in AIR 2020 SC 5747, the Hon'ble Supreme Court in
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paragraph No.22 has held as follows:
“22. Even though, this Court in United Bank of India v.
Satyawati Tondon and Ors. MANU/SC/0541/2010 : (2010) 8 SCC
110 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. 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”.
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5. In view of the above, the writ petition stands dismissed with
liberty to the petitioner to approach the respondent bank with representation /
objections. No costs. Consequently, connected Writ Miscellaneous Petition is
closed.
[D.K.K., J.] [R.V., J.]
01.02.2024
Index : Yes / No
Internet : Yes / No
SJ
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D.KRISHNAKUMAR, J.
and
R.VIJAYAKUMAR, J.
SJ
01.02.2024
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