Prayer: Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records relating to the impugned sale notice dated 23.5.2014 issued by the second respondent for “E” auction mode which will be held on 2.7.2014 accordance to the petitioner's Educational Institutions cum property and quash the same.
ORDER
[Order of the Court was made by S. VAIDYANATHAN, J.,]
The petitioner has come up with the above writ petition challenging 13(4) notice issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the SARFAESI Act, 2002”).
2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for respondents.
3. The Hon'ble Apex Court has time and again reiterated that whenever there is an alternative and effective remedy available, filing of writ petitions under Article 226 of the Constitution of India, bypassing the provisions of the statutory law, more particularly, in SARFAESI proceedings, should not be entertained. The Hon'ble Supreme Court in UNITED BANK OF INDIA v. SATYAWATI TONDON reported in (2010) 8 SCC 110 has held as follows:-
“…45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but there can be no 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 that the particular legislation contains a detailed mechanism for redressal of his grievance.
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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.”
In view of the above settled principle laid down by the Apex Court, we are of the considered view that this petition is too premature and the petitioner/Bank can very well raise all the grounds, raised before this Court, before the Appellate Authority/DRAT by filing appropriate appeal as provided under the Act.
4. However, an appeal u/s.18 of the SARFAESI Act, 2002, as against the order of the DRT should be filed within a period of thirty days from the date of receipt of the order copy of the DRT and in the instant case, the order of the DRT in SA. No. 165/2008 came to be passed on 26.12.2012 and certainly the period of limitation would have expired already. The Hon'ble First Bench at the Madurai Bench of this Court in WP. [MD] No. 3167/2010 etc., batch, [B. SARAVANAN v. THE AUTHORISED OFFICER, SYNDICATE BANK, 105-106, PONNURANGAM ROAD [WEST], R.S PURAM, COIMBATORE] dated 21.11.2013 has held in paragraph 7 as follows:-
“……. 7. In view of the above, the aggrieved parties are permitted to move the appropriate Forum provided under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, within a period of eight weeks from today, failing which, it would be open to the respondent Banks concerned to proceed further, as per the relevant provisions of law, including the provisions contained in Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. If the aggrieved parties approach the appropriate forum in time, as specified in this order, the appropriate forum shall entertain such matters, on merits and in accordance with law and dispose of the same, without raising the issue of delay, in the filing of the matters. …….”
5. It is open to the writ petitioner to approach the Debts Recovery Tribunal in terms of Section 17 of the Act. If the time has already expired, it is open to them to approach the Debts Recovery Tribunal, within 15 days of the receipt of a copy of the order.
6. The writ petition is disposed of in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
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