Madras High Court
S.Shanmuga Perumal vs The Insurance Regulatory And ... on 16 June, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P(MD)No.23944 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
W.P(MD)No.23944 of 2023
and
W.M.P(MD)Nos.20112, 20114, 20117 & 20119 of 2023
S.Shanmuga Perumal ... Petitioner
vs.
1.The Insurance Regulatory and Development Authority of India,
Survey No.115/1,
Financial District,
Nanakramguda,
Gachibowli,
Hyderabad – 500 032.
2.M/s.Housing Development Finance Corporation Limited,
Represented through its Branch Manager,
7A, West Veli Street,
Madurai – 625 001.
3.The Authorised Officer,
Housing Development Finance Corporation Limited,
406, Sakthi Sivan Plaza,
Pumping Station Road,
9th Cross Street, K.K. Nagar (East),
Madurai – 625 009.
1/10
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W.P(MD)No.23944 of 2023
4.HDFC Ergo General Insurance Company Limited,
Represented through its Branch Manager,
242-B, 3rd Floor, Reha Towers,
Kamarajar Salai,
Madurai. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the records
relating to the impugned demand notice dated 12.12.2022 in Reference Suit No.
147646 and consequential possession notice dated 08.03.2023 in Reference Suit
No.147646 issued by the third respondent and quash the same and
consequentially forbearing the respondents 2 and 3 from pursuing any action
under the Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 in respect of the subject property in Plot No.101,
S.No.69/2A3, Vaigai Nagar, Ayanthathaneri Village, S.Alangulam, Ward No.4
Madurai - 625 017.
For Petitioner : Mr.T.R.Jeyapalam
For R – 1 : Mr.S.Anwar Sameem
For R – 2 : Not ready in notice
For R – 3 : Mr.N.S.Karthikeyan
For R – 4 : Mr.S.Srinivasa Raghavan
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W.P(MD)No.23944 of 2023
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM, J.)
The demand notice, dated 12.12.2022 and the possession notice
dated 08.03.2023 issued by the third respondent/HDFC Bank under the
SARFAESI Act are under challenge in the present Writ Petition.
2.The action initiated under the SARFAESI Act is susceptible to an
appeal under the provisions of the Act. Since alternative remedy is contemplated
under the SARFAESI Act, the Writ Petition under Article 226 of Constitution of
India is not maintainable.
3.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
held that the High Court was not justified in exercising the writ jurisdiction under
Article 226 of Constitution of India, since efficacious alternative remedy is
contemplated under the provisions of the SARFAESI Act. 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
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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,
(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
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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 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
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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 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
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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 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.”
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3.In view of the above legal position, granting liberty to the
petitioner to approach the Debts Recovery Tribunal to redress his grievance, this
Writ Petition stands dismissed. However, the period during which the present
Writ Petition was pending before this Court shall be taken into consideration for
the purpose of condoning the delay, if any. There shall be no order as to costs.
Consequently, connected Miscellaneous Petitions are closed.
[S.M.S.,J.] & [A.D.M.C.,J.]
16.06.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes
ps
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To
1.The Insurance Regulatory and Development Authority of India,
Survey No.115/1,
Financial District,
Nanakramguda,
Gachibowli,
Hyderabad – 500 032.
2.M/s.Housing Development Finance Corporation Limited,
Represented through its Branch Manager,
7A, West Veli Street,
Madurai – 625 001.
3.The Authorised Officer,
Housing Development Finance Corporation Limited,
406, Sakthi Sivan Plaza,
Pumping Station Road,
9th Cross Street, K.K. Nagar (East),
Madurai – 625 009.
4.HDFC Ergo General Insurance Company Limited,
Represented through its Branch Manager,
242-B, 3rd Floor, Reha Towers,
Kamarajar Salai,
Madurai.
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S.M.SUBRAMANIAM, J.
and
DR.A.D.MARIA CLETE, J.
ps
ORDER MADE IN
DATED : 16.06.2025
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