Madras High Court
Mr.Kumaravel Varadharaj vs The Authorized Officer / Chief Manager on 9 September, 2024
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.26523 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2024
CORAM:
THE HON'BLE MR.D.KRISHNAKUMAR
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.P.No.26523 of 2024 and
W.M.P.Nos.29017 & 29018 of 2024
Mr.Kumaravel Varadharaj ... Petitioner
-vs-
The Authorized Officer / Chief Manager,
Canara Bank,
Uthiragadikaval Branch,
Thethukadu Post,
Uthiragagaikaval,
Namakkal District. ... 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 in order in Crl.M.P.No.440 of
2024 dated 09.08.2024 on the file of the Chief Judicial Magistrate, Namakkal and quash
the same as illegal, incompetent, without jurisdiction and violative of Section 31(g) of
the Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 and further direct the respondent to reconstruct the loan amount of the
petitioner.
For Petitioner : Mr.M.Muruganantham
For Respondent : Mr.R.Sreedhar
*****
ORDER
https://www.mhc.tn.gov.in/judis
(By the Hon'ble Acting Chief Justice)
This Writ Petition has been filed, seeking to quash the order dated
09.08.2024 passed by the Chief Judicial Magistrate, Namakkal in Crl.M.P.No.440 of
2024, by which an Advocate Commissioner was appointed for taking physical
possession of the property.
2. On going through the averments made in the affidavit and the relief
sought for, we are of the view that the petitioner has challenged the order passed in
respect of taking possession of petition schedule property under Section 14 of the
SARFAESI Act, 2002, 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.
https://www.mhc.tn.gov.in/judis
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:
https://www.mhc.tn.gov.in/judis
"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 have 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.
https://www.mhc.tn.gov.in/judis
5. Accordingly, this Writ Petition is dismissed. It is open to the petitioner to
work out his remedy available under Section 17 of the SARFAESI Act before the
appropriate forum. Two weeks' time is granted to the petitioner to prefer an appeal
before the appropriate Forum. Registry is directed to return the original papers, if any to
the petitioner forthwith after retaining xerox copies of the same. No costs. Consequently,
connected Miscellaneous Petitions are closed.
[D.K.K.,ACJ.] [P.B.B,J.]
09.09.2024
Index: Yes / No
Internet: Yes / No
Speaking Order/Non Speaking Order
ar
HON'BLE ACTING CHIEF JUSTICE,
AND
P.B.BALAJI,J.,
ar
https://www.mhc.tn.gov.in/judis
09.09.2024
https://www.mhc.tn.gov.in/judis
