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Judgment
Sujoy Paul, Judge
By invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioners have prayed that the auction proceedings in regard to disputed property be set aside and sale certificate if issued be quashed. Petitioners have prayed for consequential relief also.
In nutshell, the petitioners have drawn attention of this Court on Annexure P/1 and submit that the sale certificate has not been issued by the respondent pursuant to the auction and, therefore, this Court may entertain the petition. Shri Rajmani Bansal also placed reliance on L.K. Trust Vs. EDC Ltd. and Others, in support of his contention.
I have heard the parties and perused the record.
The petitioners in para 3 of their writ petition have declared that no statutory and other remedy is available to them for ventilating their grievance. Section 17 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the ''SARFAESI Act'') provides a right to prefer an appeal in certain circumstances. A bare perusal of this provision shows that if a person is aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditors, may prefer an appeal. Section 13(4) provides various measures for the secured creditors and one such measure is defined in sub-section 4(a), which reads as under:-
13(4)In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debts, namely:--
(a) take possession of the secured assets of the borrower including right to transfer by way of lease, assignment or sale for realising the secured asset.
A bare perusal of Annexure P/1 shows that the respondent-Bank has taken possession of the property in question. Thus, in the considered opinion of this Court, one of the measures of sub-section (4) of section 13 of the SARFAESI Act has been taken by the secured creditors. In this view of the matter, the petitioners have a statutory remedy u/s 17 of the SARFAESI Act. Thus, the petitioners have incorrectly stated that they have no other statutory remedy.
This question is no more res integra in view of the judgment of Apex Court in United Bank of India Vs. Satyawati Tondon and Others, The Apex Court held as under:
In Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, he Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be by passed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed; (SCC p. 781, paras 31-32)
When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That, should not be abdicated and given a go-by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
No reason could be assigned by the appellant''s counsel to demonstrate why the appellate jurisdiction of the High Court u/s 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum.
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 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.
Needless to mention that in Satyawati Tondon''s case (supra) the Apex Court was dealing with the provisions of the SARFAESI Act.
Shri Rajmani Bansal fairly submits that the judgment delivered in M/s. L.K. Trust''s case (supra) does not relate to the SARFAESI Act. This is settled in law that a judgment is an authority for the point which has been decided and not what is logically flowing from it.
In this view of the matter, in view of direct and binding judgment of Supreme Court in Satyawati Tondon''s case (supra) dealing with the provisions of SARFAESI Act, I find no reason to interfere in the matter because of availability of statutory remedy u/s 17 of the SARFAESI Act. The interference is declined. However, liberty is reserved to the petitioner to avail the said remedy. Petition is dismissed.