Madras High Court
Latha vs The Branch Manager on 5 June, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P(MD)No.15333 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
W.P(MD)No.15333 of 2025
and
W.M.P.(MD) No.11585 of 2025
1.Latha
2.N.Thomson
3.N.Raj ... Petitioners
Vs.
1.The Branch Manager,
Tamil Nadu Mercantile Bank Ltd.,
Marthandam Branch,
Kanyakumari District.
2.Ecklas Edwin ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus, to
call for the records pertaining to the Impugned Order dated 29.11.2024
passed in Cr.M.P.No.5308 of 2024 on the file of the Chief Judicial
Magistrate, Nagercoil, Kanyakumari District and to set aside the same
and consequently, direct the respondents not to interfere the petitioner's
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W.P(MD)No.15333 of 2025
peaceful possession and enjoyment of his property in Old Survey No.
1695 and New Survey No.72/12A situated at Keezhkulam - B, Village,
Vilavancode (No Killiyoor Taluk), Kanyakumari District.
For Petitioner : Mr.R.Sreenivasan
For Respondent-1 : Mr.T.Thavam
ORDER
[Order of the Court was made by S.M.SUBRAMANIAM, J.]
This writ petition has been instituted challenging an order passed
by the Chief Judicial Magistrate, Kanyakumari at Nagercoil in Criminal
Miscellaneous Petition No.5308 of 2024, dated 29.11.2024.
2. The order impugned is susceptible to an appeal under the
Securitisation and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 before the Debts Recovery Tribunal.
3. The issue regarding the maintainability of a writ petition under
Article 226 of the Constitution of India has been settled by the Hon'ble
Supreme Court in the case of Celir LLP Vs. Bafna Motors (Mumbai)
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Private Limited and others reported in (2024) 2 SCC 1. Paragraph Nos.
97, 98, 110 and 110.1, which are relevant in this context, stand extracted
hereunder:
“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, (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
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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 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.
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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 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
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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 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
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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.”
4. In view of the above legal position, granting liberty to the
petitioner to approach the competent forum for redressal of grievances,
this Writ Petition stands dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
[S.M.S., J.] [A.D.M.C., J.]
05.06.2025
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
abr
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S.M.SUBRAMANIAM, J.
and
DR.A.D.MARIA CLETE, J.
abr
05.06.2025
(2/2)
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