Madras High Court
Pakiyam vs The Authorised Officer on 5 September, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.26286 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.09.2024
CORAM :
THE HON'BLE MR.D.KRISHNAKUMAR, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.P.No.26286 of 2024
Pakiyam .. Petitioner
Vs.
1. The Authorised Officer
Canara Bank
Mandavelipakkam Branch
No.226, R.K.Mutt Road
Mandavelipakkam, Chennai 600 028.
2. The Branch Manager
Canara Bank
Mandavelipakkam Branch
No.226, R.K.Mutt Road
Mandavelipakkam, Chennai 600 028.
3. P.Raghupathi
4. R.Mahalakshmi .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of Certiorari calling for the entire records
relating to the order passed by the 1st respondent in
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W.P.No.26286 of 2024
Ref.No.ROSOUTH/RECOVERY/SALE NOTICE/E-AUCTION/2024-25
dated 30.07.2024 and quash the same.
For the Petitioner : Mr.C.Prakasam
For the Respondents : Mr.R.Sreedhar
for Respondents 1 & 2
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
The petitioner challenges the notice issued by the respondent
bank under Section 13(4) of the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002.
2. The petitioner has an efficacious alternative remedy to
prefer an appeal before the Debts Recovery Tribunal under Section
17 of the Act and without exhausting the same, has approached this
Court.
3. The Supreme Court in the case of The Authorized Officer,
State Bank of Travancore and another Vs. Mathew K.C., reported in
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(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.
4. 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.
5. In Phoenix ARC Private Limited v. Vishwa Bharati Vidya
Mandir and others, (2022) 5 SCC 345, after taking note of various
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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:
"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
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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]
6. In a recent decision in the case of South Indian Bank Ltd
and others v. Naveen Mathew Philip and another,
MANU/SC/0400/2023, the Apex Court 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.
7. In the light of the above, we are not inclined to interfere
with the impugned notice and it is for the petitioner to seek
appropriate remedy before the Debts Recovery Tribunal.
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8. The writ petition is dismissed. There shall be no order as to
costs. Consequently, W.M.P.Nos.28714 and 28715 of 2024 are also
dismissed.
(D.K.K., ACJ.) (P.B.B., J.)
05.09.2024
Index : Yes/No
Neutral Citation : Yes/No
kpl
To
1. The Authorised Officer
Canara Bank
Mandavelipakkam Branch
No.226, R.K.Mutt Road
Mandavelipakkam, Chennai 600 028.
2. The Branch Manager
Canara Bank
Mandavelipakkam Branch
No.226, R.K.Mutt Road
Mandavelipakkam, Chennai 600 028.
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D.KRISHNAKUMAR, ACJ,
AND
P.B.BALAJI ,J.
(kpl)
05.09.2024
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