TMI Blog2017 (1) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... DIP C BHATT, ADVOCATE CAV JUDGMENT The first prayer in this petition is to set aside notice dated 08th July, 2016 given by the first respondent under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. By second prayer, Notice under Section 13(4) of the said Act issued on 08th September, 2016 is prayed to be set aside. It is further prayed to direct respondent-Bank to provide all the documents as asked for in the objections by the petitioners. 2. The petitioners pray that the action taken by the respondents under the Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) be declared as without authority in law. 3. The first petitioner company took financial assistance by way of Cash Credit and Term Loan from the respondents. The petitioner No.2 is Director of the company who guaranteed the loan of the borrower. Upon failure of repayment, the respondent Bank invoked the provisions of the SARFAESI Act, proceeding to issue notice dated 05th July, 2016 under Section 13(2) of the Act demanding the amount of ₹ 18,35,32,088.25 Ps. as due on the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the Act and the Rules. It was submitted that the advocate did not act under the instructions of the authorised officer who was the statutory authority supposed to exercise his powers. It was submitted that the authorised officer could not have delegated his powers to the advocate and could not have appointed the advocate as the law require the authorised officer deal with the objections himself. It was therefore submitted that the action was in contravention of law. 4.3 Decision of the Supreme Court in M. Chandru Vs Member Secretary, Chennai Metropolitan Development Authority [(2009) 4 SCC 72] was pressed into service on behalf of the respondents for its paragraphs 10 and 18 to highlight the concept of delegation, to assert that there could not have been delegation in favour of advocate and the objections ought to have been dealt with by the authorised officer. For emphasising the proposition that only the authorised officer could have dealt with, decision of the Kerala High Court in Bobby Sabestian Vs Authorised Officer being Writ Petition (C) No.2372 of 2013 decided on 11th April, 2014 as well as the decision of the Andhra Pradesh High Court in Sampoorna Battu V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this circumstances, without going into the controversy, the respondent bank is withdrawing notice dated 08.09.2016 issued by the respondent bank demanding possession of the properties in question and request to permit the respondent bank for taking the further measures under section 13(4) of the Act, 2002 by issuing fresh notice for possession as the bank had complied the section 13(4) of the Act, 2002. ... ... 5.1 Though it is the stand of the Bank as evinced in the aforesaid averments as well as from paragraph 5.2 of the affdiavit that the Bank had issued notice demanding possession of the secured assets on 08th September, 2016 which was served on the petitioners by hand delivery on the same day and further that the respondent Bank had considered the objections of the petitioners and replied the same by letter dated 10th September, 2016 which was also served on the petitioners as per the endorsement and seal of acceptance of respondent No.1 sought to be relied on (Page 91) and further that the same was also served upon the advocate by Registered Post A.D. On 13th September, 2016. It was stated that without admititng the contentions of the petitioners and without going int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons even in cases where representation or objection is not acceptable. It is submitted that in absence of order by Authorized Officer, mere communication made through advocate is not in compliance of section 13 (3A) of SARFAESI Act. On the other hand, learned counsel appearing for the respondent-Bank submits that after rejection of objections under section 13(3A) of SARFAESI Act further measures were also taken under section 13(4) of SARFAESI Act. As such if the appellant- petitioner is aggrieved it is always open for him to question the same by way of appeal under section 17 of SARFAESI Act before the Debt Recovery Tribunal. It is further submitted that there is no reason for the appellantpetitioner to approach this Court bypassing the remedy of appeal. (Para 3) It is true that petition was filed immediately after rejection of objection under section 13(3A) of SARFAESI Act, before measures were taken under section 13(4) of SARFAESI Act. At the same time, it is not in dispute that the respondent-Bank has taken measures under section 13(4) of SARFAESI Act, which is appealable under section 17 of SARFAESI Act. Even measures taken under section 13(4) of SARFAESI Act is in con ..... 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