TMI Blog2016 (11) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 16-11-2016 - MR. N.V.ANJARIA, J. FOR THE PETITIONER : MR. BK. RAJ, ADVOCATE CAV ORDER Heard learned advocate Mr. B. K. Raj for the petitioners. 2 What is brought under challenge by filling this writ petition under Article 226 of the Constitution, is the order dated 28.09.2016 passed by the District Magistrate, Surat, being order under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in case No. 160 of 2016. 3 The third respondent-the Yes bank appears to have granted credit facility in May, 2014 to the extent of ₹ 36 lakhs to the petitioner Nos. 1 to 4 herein. Against the said loan, the second respondent mortgaged commercial shop bearing No. 3/2267 situated at Pooja Apartment, Balabhai Street, Opp. Salabatpura police station, Surat. As the petitioners defaulted in payment of the loan amount, the third respondent bank invoking provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, issued notice dated 18.06.2015 under section 13(2) of the Act. Thereafter, notice under section 13(4) of the Act was also issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate post Section 13(4) events or whether its scope in terms of Section 17 of the Act will be confined to the stage contemplated under Section 13(4) of the Act? On an examination of the provisions contained in Chapter III of the Act, in particular Sections 13 and 17, this Court held as under : 35. In order to prevent misuse of such wide powers and to prevent prejudice being caused to a borrower on account of an error on the part of the banks or financial institutions, certain checks and balances have been introduced in Section 17 which allow any person, including the borrower, aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor, to make an application to the DRT having jurisdiction in the matter within 45 days from the date of such measures having taken for the reliefs indicated in subsection (3) thereof. 36. The intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. 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 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, 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. 5.3 The remedy of section 17 of the Act is available at such stage and position which is obtained in the present case as well. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k for taking up possession shall be subject to further order of this Court. 6. It is also clarified that as the time of one week to deposit the amount is granted, the petitioner shall also not transfer or alienate the property in question. 5. We would like to rely upon the observations made by the Division Bench of this Court in the case of Analkumar Rajkishore Mishra ors. Vs. Dena Bank, reported in AIR 2011 Gujarat, 187 (to which one of us, J.B. Pardiwala, J. is a party) on the question of alternative remedy. The observations made in paragraph 9 are as under:- 9. From the aforesaid provisions of law, it will be evident that the notice for possession, preparation of panchnama of such possession, notice to sell the property, to take assistance of District Magistrate/Chief Metropolitan Magistrate/Chief Judicial Magistrate for taking over possession, one or other step as referred to above, amounts to measures taken u/Sub-sec.(4) of Sec.13 of the SARFAESI Act, and therefore, an appeal u/Sec.17 of the said Act against such measures is maintainable, if the action is against the Act or Rules framed thereunder. In this background, we are of the view that it was not open to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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