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Judgment
Ajay Kumar Mittal, CJ
Challenge in the writ petition filed under Article 226 of the Constitution of India is to the action of the respondent in initiating the proceedings by issuing notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets Enforcement of Security Interest Act,
Perusal of the writ petition shows that the petitioners have defaulted in repayment of the loan amounting to Rs. 18,38,11,324/- (Rupees eighteen crores thirty eight lakhs eleven thousand three hundred twenty four).
They have approached this Court when alternative remedy under the provisions of SARFAESI Act is available to them. The Apex Court in the case of Union Bank of India v. Satyawati Tondon: (2010) 8 SCC 110 held that where an alternative effective remedy was available to the aggrieved person, the High Court should not ordinarily entertain the writ petition under Article 226 of the Constitution. Paras 43, 44 and 45 read as under:-
"43. Unfortunately, the High Court 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.
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.
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."
In view of the above, we refrain from entertaining the writ petition and dispose of the same with the observation that the petitioners, if so advised, may take recourse to alternative remedy under SARFAESI Act in accordance with law.