Madras High Court
S.Gowsi Shahjahan vs The Authorized Officer on 2 June, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.(MD)No.12001 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
W.P.(MD)No.12001 of 2025
and
W.M.P.(MD)No.8833 of 2025
S.Gowsi Shahjahan ... Petitioner
Vs.
The Authorized Officer,
M/s.HDFC Bank Ltd., No.406,
Sakthi Sivam Plaza, Pumping Station Road,
9th Cross Street, K.K.Nagar,
Madurai-625 020. ...Respondent
PRAYER: Petition filed under Article 226 of the Constitution of India, to issue a
Writ of Certiorarified Mandamus, calling for the records pertaining to the
impugned order in Cr.M.P.No.4390 of 2024 dated 03.02.2025 on the file of the
Chief Judicial Magistrate Court, Madurai and to quash the same as illegal and
consequently, to direct the respondents to open the seal of the door and forbear the
respondent from in any way dispossessing the petitioner's property the residential
house building in Madurai District, Madurai South Registration District, Madurai
South Joint IV SRO, Madurai South Taluk, Madurai Survey Ward No.4, Old
1/7
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W.P.(MD)No.12001 of 2025
Corporation Ward No.54, New No.42, having Tax Assessment No.129814 &
79830, M.K.Puram, Kaja Street, in T.S.No.1942/1. In that southern portion of
D.No.33 A measuring 1 ½ cents 102 sq.ft.
For Petitioner : Mr.S.Pugalendhi
For Respondent : Mr.N.S.Karthikeyan
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The Writ on hand has been instituted questioning the validity of the
order passed by the learned Chief Judicial Magistrate, Madurai dated 03.02.2025
in Cr.M.P.No.4390 of 2024. Admittedly, an efficacious alternative remedy is
contemplated under SARFAESI Act. Therefore, the Writ proceedings are not
maintainable, in view of the judgment of the Hon'ble Supreme Court of India in
the case of Celir LLP Vs. Bafna Motors (Mumbai) Private Limited and others
reported in (2024) 2 SCC 1. Paragraph Nos.97, 98, 110 and 110.1 would be
relevant in this context and have been extracted herein:-
“97.This Court has time and again, reminded the High
Courts that they should not entertain petition under Article 226 of
the Constitution if an effective remedy is available to the aggrieved
person under the provisions of the SARFAESI Act. This Court in
Satyawati Tondon [United Bank of India v. Satyawati Tondon,
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(2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260] made the following
observations : (SCC pp. 123 & 128, paras 43-45 & 55)
“43. Unfortunately, the High Court [Satyawati
Tondon v. State of U.P., 2009 SCC OnLine All 2608]
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 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 grievance 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.
44. While expressing the aforesaid view, we are
conscious that the powers conferred upon the High Court
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under Article 226 of the Constitution to issue to any
person or authority, including in appropriate cases, any
Government, directions, orders or writs including the five
prerogative writs for the enforcement of any of the rights
conferred by Part III or for any other purpose are very
wide and there is no express limitation on exercise of that
power but, at the same time, we cannot be oblivious of the
rules of self-imposed restraint evolved by this Court,
which every High Court is bound to keep in view while
exercising power under Article 226 of the Constitution.
45. It is true that the rule of exhaustion of
alternative remedy is a rule of discretion and not one of
compulsion, but it is difficult to fathom any reason why
the High Court should entertain a petition filed under
Article 226 of the Constitution and pass interim order
ignoring the fact that the petitioner can avail effective
alternative remedy by filing application, appeal, revision,
etc. and the particular legislation contains a detailed
mechanism for redressal of his grievance.
***
55. It is a matter of serious concern that despite
repeated pronouncement of this Court, the High Courts
continue to ignore the availability of statutory remedies
under the DRT Act and the Sarfaesi Act and exercise
jurisdiction under Article 226 for passing orders which
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have serious adverse impact on the right of banks and
other financial institutions to recover their dues. We hope
and trust that in future the High Courts will exercise their
discretion in such matters with greater caution, care and
circumspection.”
98.In CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass
Agarwal, (2014) 1 SCC 603] , this Court in para 15 made the
following observations : (SCC p. 611, para 15)
“15. Thus, while it can be said that this Court
has recognised some exceptions to the rule of alternative
remedy i.e. where the statutory authority has not acted in
accordance with the provisions of the enactment in
question, or in defiance of the fundamental principles of
judicial procedure, or has resorted to invoke the provisions
which are repealed, or when an order has been passed in
total violation of the principles of natural justice, the
proposition laid down in Thansingh Nathmal case
[Thansingh Nathmal v. Supdt. of Taxes, 1964 SCC OnLine
SC 13] , Titaghur Paper Mills case [Titaghur Paper Mills
Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC
(Tax) 131] and other similar judgments that the High
Court will not entertain a petition under Article 226 of the
Constitution if an effective alternative remedy is available
to the aggrieved person or the statute under which the
action complained of has been taken itself contains a
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mechanism for redressal of grievance still holds the field.
Therefore, when a statutory forum is created by law for
redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation.”
110.We summarise our final conclusion as under:
110.1. The High Court was not justified in exercising its
writ jurisdiction under Article 226 of the Constitution more
particularly when the borrowers had already availed the alternative
remedy available to them under Section 17 of the SARFAESI Act.”
2.The learned counsel appearing for the respondent has brought to the
notice of this Court that the petitioner has simultaneously approach the Debts
Recovery Tribunal by filing appropriate petition. Therefore, the present Writ
Petition has been instituted with an idea to escape from the clutches of
proceedings already initiated under SARFAESI Act. Hence, this Writ Petition
stands dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
(S.M.S., J.) & (A.D.M.C., J.)
02.06.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Yuva
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S.M.SUBRAMANIAM, J.
AND
DR.A.D.MARIA CLETE, J.
Yuva
02.06.2025
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