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2016 (12) TMI 562 - GUJARAT HIGH COURT

2016 (12) TMI 562 - GUJARAT HIGH COURT - TMI - Possession notice issued by the respondent Bank under Section 13(4) of the Securtization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 challenged - Held that:- The proper course was to relegate the petitioner to avail the remedy. The alternative remedy has to be adhered to steadfast, instead of allowing the petitioner to straightway approach the High Court in a writ jurisdiction - No case is made out for i .....

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possession notice dated 13.02.2016 issued by the respondent Bank under Section 13(4) of the Securtization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. It is further prayed to restore the possession of the mortgaged property in favour of the petitioner. It is also prayed to direct the respondents to allow the petitioner to take back the possession of the property. 3. The statement of facts would be in brief. The petitioner claims to be the original owner .....

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notice under Section 13(4) of the Act was issued on 12.06.2014 and the symbolic possession of the property was taken. As the physical possession was not handed over, the proceedings under Section 14 of the Act were filed before the District Magistrate who passed order dated 29.12.2015 allowing the application of the respondent Bank. The physical possession was taken on 13.02.2016. 4. In order to buttress the submissions, learned advocate for the petitioner harped on three main aspects. Firstly t .....

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he stage at which the proceedings are obtained. It is an admitted position that notice under Section 13(4) is issued and the possession of the secured asset is taken. The stage at Section 13(4) and postSection 13(4) stages attract a remedy provided under the statute of preferring appeal before the Tribunal. The petitioner has clear statutory alternative remedy under Section 17 of the Act. The issues before the Tribunal could be dealt with after allowing the parties to lead their evidencecumall t .....

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be fully justified. 6. Learned advocate for the petitioner relied on in vain decision of the Supreme Court in Standard Chartered Bank vs. Noble Kumar and ors. [(2013) 9 SCC 620] to contend that the possession is not taken in tune with the requirements of the Act. For buttressing the submission that the order under Section 13(4) was not in terms of Section 14(1), he relied on decision of this Court in Nalin Vasudev Sompura vs. District Magistrate being Special Criminal Application (Quashing) No. .....

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not to entertain direct writ petition. In Union Bank of India Vs Satyawati Tondon [(2010) 8 SCC 110] the Apex Court observed thus, 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 financia .....

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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. 7.1 Sounding caution, the Supreme Court observed further thus, ...despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on .....

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