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Judgment
Smt.M.Rajeshwari, counsel for the petitioner and Sri.Lokesh K.V. counsel for respondent appeared in person.
This petition is filed seeking following reliefs:
(i)Issue a writ in the nature of certiorari quashing the possession notice dated 29.07.2024 issued by the respondent, authorized officer under Section 13(4) r/w Rule 8(1) of the SARFAESI Act, produced at Annexure-A.
(ii)To declare that the action initiated by the respondent is illegal and contrary to the provisions of SARFAESI Act and its Rules.
(iii)And pass such other order/s as this Hon'ble Court deems fit to grant under the circumstances of the case, interest of justice and equity.
Counsel for the respective parties urged several contentions. Heard the arguments and perused the papers with care.
The authorized officer of the Bank had issued possession notice dated 29.07.2024 under the SARFAESI Act and Rules. The petitioner's grievance is about the issuance of the possession notice. Any person/s aggrieved by issuance of notices under SARFAESI Act/ Rules are not powerless. They have a liberty of filing objections and also approach, appealing to the Tribunal if needed. The Apex Court has settled the law in a catena of decisions that a possession notice cannot be challenged by filing a writ petition. The litigants are not remediless, as the Tribunal has been established specifically to adjudicate the lis.
It is significant to note that Article 226 is not intended to circumvent statutory procedures. When a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226. The law is also well settled that a petition under Article 226 should not be entertained unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation.
Moreover, the Apex Court has also observed in the case of UNITED BANK OF INDIA V/S. SATYAWATI TONDON AND OTHERS that the High Courts continue to ignore the availability of statutory remedies under the DRT and SARFAESI Act and exercised jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of the 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 great caution, care and circumspection.
The Apex Court in Phoenix Case's has held that filing of writ petition before the High Court under Article 226 of Constitution of India is an abuse of process of the Court. It is also observed that whenever a notice is issued under Section 13(2) and 13(4) of the SARFAESI Act, a litigant has statutory efficacious remedy by filing an appeal under the SARFAESI Act, and has cautioned the High Courts not to entertain the writ petitions. Hence, I decline to exercise discretionary powers under writ jurisdiction. The petition is devoid of merits. Accordingly, the writ petition is dismissed. The petitioner may approach the appropriate forum if so advised and if the law permits.
Because of dismissal of the Writ Petition, interim order granted if any stands discharged and pending interlocutory applications if any are disposed of.