1. This Writ Petition is filed seeking Writ of Certiorari to quash the orders of Chief Metropolitan Magistrate, Egmore in Crl.O.P.No.2359 of 2010 dated 16.08.2010 appointing Advocate-Commissioner to take possession of the property of the Petitioner.
2. 2nd Respondent-Lakshmipathy and 3rd Respondent-Somasundari have availed home loan of Rs.10,21,000/- on 24.03.2004 from 1st Respondent Bank and executed various documents and also deposited title deeds of the mortgaged property. The borrowers failed to honour the commitment and so the loan account become Non Performing Asset. By exercising the power conferred on the 1st Respondent Bank under Sec.13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [SARFAESI Act], 1st Respondent Bank issued Demand notice to the borrowers [1st and 2nd Respondents] on 27.06.2009 to enable them to pay the balance amount of Rs.9,36,281.90 within 60 days from the date of notice and the said notice was duly served to the borrowers. Even after the expiry of 60 days, the borrowers have not come forward to repay the dues. Stating that they are not in a position to take physical possession of the secured asset, 1st Respondent Bank filed Petition under Sec.14 of SARFAESI Act before Chief Metropolitan Magistrate, Egmore to pass an order enabling the 1st Respondent Bank to take possession and management of the secured asset.
3. By the order dated 16.08.2010 in Crl.O.P.No.2359/2010, the Chief Metropolitan Magistrate, Egmore has passed the impugned order appointing the Advocate-Commissioner to take possession of the property. On 21.08.2010, the Advocate-Commissioner came to the spot along with other Officers of the 1st Respondent Bank to take possession of the property. Aggrieved by the same, Petitioner has filed this Writ Petition.
4. Case of Petitioner is that he is the present owner of the property bearing Flat No. I/31. 3rd Floor, I Block, NPL Agasthiya Apartments, Door No.605 & 606, Tondiarpet, Chennai-81 measuring 385.5 sq. ft. out of 35 grounds and 26 sq. ft. with a plinth area of 935 sq. ft. together with a garage/reserved parking space bearing No.15, measuring 234 sq. ft. in the ground floor comprised in R.S.No.3923 at Thiruvotriyur High Road, Fort-Tandiarpet Taluk. Further case of Petitioner is that his wife Sheela purchased the same from the 3rd Respondent [Lakshmipathy] by a sale deed dated 15.11.2005 registered as Document No.3313/2004 and 3rd Respondent had suppressed the creation of mortgage infavour of the Bank. On 03.06.2009, Sheela - wife of Petitioner executed a settlement deed infavour of the Petitioner settling the property in his favour.
5. Challenging the order of the Chief Metropolitan Magistrate, Egmore, Mr.Ramesh Kumar Chopra, learned counsel appearing for the Petitioner raised two contentions:-
1st Respondent Bank cannot bypass Sec. 13(4) of SARFAESI Act and invoke the provisions of Sec.14. He would submit that before invoking Sec. 14 notice under Sec.13(4) is necessary, otherwise the provisions of appeal under Sec.17 will become useless, particularly when the proceedings under Sec.14 cannot be questioned by filing appeal before the Tribunal or before a Court. In the event the procedures contemplated under Rule 8 of the Security Interest (Enforcement) Rules, 2002 are not followed before Sec.14 is invoked, the order passed by the Chief Metropolitan Magistrate would be contrary to the said Rules and consequently, the order passed under Sec.14 is liable to be set aside.
6. Mr.S.Vasudevan, learned counsel appearing for the 1st Respondent Bank submitted that 1st Respondent Bank is entitled to take symbolic possession under Sec.13(4) of SARFAESI Act and in the event, the 1st Respondent Bank experienced any difficulty in taking possession, it may approach the Chief Metropolitan Magistrate concerned under Sec.14 of the Act. It was further submitted that the rights of the Bank to invoke Sec.14 of the Act is independent of the provisions of Sec.13(4) and the powers of Chief Metropolitan Magistrate/District Magistrate under Sec.14 is only ministerial and no adjudication is required and under Sec.14(3), the order of the Chief Metropolitan Magistrate/District Magistrate is final and the same cannot be called in question in any Court or before any Authority.
7. To decide the controversy, the provisions of Secs.13(2), 13(3-A), 13 (4), 14 and 17 of SARFAESI Act are to be considered. Perusal of Sec.13 of the Act would reveal that if a notice under sub-sec.(2) is served on the borrower by the secured creditor when the said borrower makes a default in repayment of secured debt or any instalment thereof, and his account is classified by the secured creditor as non-performing asset, then, the borrower is required to discharge in full his liabilities to the secured creditor within sixty days from the date of notice, failing which, the secured creditor is entitled to exercise all or any of the rights under sub-sec.(4) of Sec.13 it can also be seen that in case the borrower fails to discharge the liability in full within the period specified in sub-sec.(2) the secured creditor is entitled to take recourse to one or more measures stated in Section 13(4) to recover his secured debt. One of such measures to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for releasing the secured asset. It can thus clearly be seen that once a notice is issued to the borrower under Sec.13(2) and he fails to comply with the notice within the stipulated period, in view of sub-clause(a) of sub-sec.(4) of Sec.13, the secured creditor is entitled to take possession of the secured assets of the borrower.
8. As per Sec.14 of the Act, secured creditor is entitled to make a request in writing to the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, where possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets is required to be sold or transferred by the secured creditor under the provisions of the said Act. It can further be seen that once such a request is made, the Chief Metropolitan Magistrate or the District Magistrate is required to take possession of such assets and documents relating thereto and forward the said assets and documents to the secured creditor. It can further be seen from sub-sec.(2) of the said Section that for the purpose of securing the compliance of sub-sec.(1), the Chief Metropolitan Magistrate or District Magistrate can take or cause to be taken such steps and use or cause to be used such force, as may, in his opinion, be necessary.
9. Under Sec.14 of SARFAESI Act, the Chief Metropolitan Magistrate/District Magistrate is required only to verify from the Bank or financial Institutions whether notice under Sec.13(2) of NPA Act is given or not and whether the secured assets fall within the jurisdiction. There is no adjudication of any kind at that stage.
10. Taking us through the provisions of SARFAESI Act, Mr.S.Vasudevan, learned counsel for 1st Respondent Bank contended that when the borrower does not respond to notice under Sec.13(2) should be considered to be aware of the consequences that will follow and that no notice is necessary under Sec.13(4) before taking possession of the security interest. It was contended that when the borrower does not respond to notice under Sec.13(2), option is available to the Bank to take recourse to the measures contemplated under Sec.13(4) of the Act. It was submitted that remedy under Sec.14 is only an enforcement of the measure under Sec.13(4)(a) of the Act to take possession. It was further contended that before invoking Sec.14, it is not necessary to issue notice under Sec.13(4) of the Act.
11. In support of his contention, the learned counsel for 1st Respondent Bank placed reliance upon 2007 (2) CTC 1 [Sundaram Home Finance Limited rep. by its Manager-Recovery, Madhavan, 46, Whites Road, Royapettah, Chennai-14 v. The Tahsildar, Hosur and another]. Holding that no notice is necessary under Sec.13(4) before taking possession of security interest, First Bench of this Court has held as under:- "9. The words of the section and the law laid down in Mardia Chemicals case [2004 (4) SCC 311] do not envisage a notice under Section 13(4). Reasons for not accepting the objection are to be communicated before taking measures like taking over possession of the secured assets. This is the fairness that is required of the lender. But if the borrower has not responded to the notice under Section 13(2), the lender has no occasion to communicate his reasons, necessarily the tender proceeds to the next stage. The borrower gets a right to challenge the action only after any of the measures contemplated under Section 13(4) have been taken. It is clear from the paragraphs extracted above from Mardia Chemicals case that the communication of the reasons may not be taken to give an occasion to resort to such proceedings which are impermissible under the Act. A person who does not respond to the notice under Section 13(2) of the Act should be considered to be aware of the consequences that will follow. In any event, it is not possible to hold that a borrower who has not responded to the notice under Section 13(2) will be entitled to a notice under Section 13(4), whereas, in respect of a borrower who has responded to a notice under Section 13(2) and has had the rejection communicated by the bank, the bank can proceed straightaway to take the measures contemplated under Section 13(4). There is no room for visualizing two such courses of action. This will be reading words into the Section, which the legislature had not used. It is not our duty to legislate. The Supreme Court also was aware that "some of the provisions may be a bit harsh for some of the borrowers", yet has not, in its judgment, held that a pre-Section 13(4) notice must be issued. We are unable to read a requirement of such notice either in the Section or in the judgment. [underlining added]
12. Contending that if the borrower is dispossessed not in accordance with the provisions of the Act, then the DRT is entitled to declare the same as invalid and consequently restore possession to the borrower, the learned counsel for 1st Respondent Bank placed reliance upon the Judgment of the Gujarat High Court in LPA.No.2172/2009 dated 03.02.2010 [Bharatbhai Ramniklal Sata, Prop. v. Collector & District Magistrate and others].
13. Observing that NPA Act provides recovery of possession by non-adjudicatory process and that if borrower is dispossessed not in accordance with the provisions of the Act in Transcore's case [(2008) 1 SCC 125], the Supreme Court held as under:- "74. .... Section 14 of the NPA Act states that where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred, the secured creditor may, for the purpose of taking possession request in writing to the District Magistrate to take possession thereof. Section 17(1) of the NPA Act refers to the right of appeal. Section 17(3) states that if DRT as an appellate authority after examining the facts and circumstances of the case comes to the conclusion that any of the measures under Section 13(4) taken by the secured creditor are not in accordance with the provisions of the Act, it may by order declare that the recourse taken to any one or more measures is invalid, and consequently, restore possession to the borrower and can also restore management of the business of the borrower. Therefore, the scheme of Section 13(4) read with Section 17(3) shows that if the borrower is dispossessed, not in accordance with the provisions of the Act, then DRT is entitled to put the clock back by restoring the status quo ante. Therefore, it cannot be said that if possession is taken before confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorised officer taking possession. As stated above, the NPA Act provides for recovery of possession by non-adjudicatory process, therefore, to say that the rights of the borrower would be defeated without adjudication would be erroneous. ......" (underling added)
14. Nature of powers that are exercised by the Chief Metropolitan Magistrate/District Magistrate under Sec.14 of the Act are purely executionery in nature. At the time of passing order under Sec.14 of NPA Act, the Chief Metropolitan Magistrate/District Magistrate will have to consider only two aspects. He must find out whether the secured assets fall within his territorial jurisdiction and whether notice under Sec.13(2) of NPA Act is given or not. No adjudication of any kind at that stage.
15. In 2008 81 SCL 173 Bombay [Trade Well, A Proprietorship Firm v. Indian Bank, A Body Corporation], the Bombay High Court considered the scope of Sec.14 of SARFAESI Act. Referring to Transcore's case and other decisions, the Bombay High Court summarised the scope of Sec.14 of the Act as under:-
"90. ....
(1) The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Sections 13 and 14 thereof to the case on hand. (2) CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party.
(3) He has to only verify from the bank or financial institution whether notice under Section 13(2) of the NPA Act is given or not and whether the secured assets fall within his jurisdiction. There is no adjudication of
(4) It is only if the above conditions are not fulfilled that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfilled. If there two conditions are fulfilled, he cannot refuse to pass an order under Section 14. (5) Remedy provided under Section 17 of the NPA Act is available to the borrower as well as the third party.
(6) Remedy provided under Section 17 is an efficacious alternative remedy available to the third party as well as to the borrower where all grievances can be raised.
(7) In view of the fact that efficacious alternative remedy is available to the borrower as well as to the third party, ordinarily, writ petition under Articles 226 and 227 of the Constitution of India should not be entertained.
(8) In exceptional cases of gravest injustice, a writ petition could be entertained by this Court.
(9) Great care and caution must be exercised while entertaining a writ petition because in a given case it may result in frustrating the object of the NPA Act.
(10) Even if a writ petition is entertained, as far as possible, the parties should be relegated to the remedy provided under Section 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible."
16. The nature of powers that are exercised by the Chief Metropolitan Magistrate/District Magistrate under Sec.14 of the Act, it is purely executionery. Substantive provision entitling the secured creditor to take possession of the secured assets flows from Sec.13(4). Observing that Sec.14 is executionery in nature facilitating taking of possession without any impediment in 2007 (5) ALD 866 [Ashok Sharda v. Small Industries Development Bank of India, represented by its General Manager and others], the Andhra Pradesh High Court held as under:- "4. .... A conjoint reading of Section 13(4) and 14 makes it clear that the source of power to take possession of the secured assets of the borrower can be traced in Section13(4) and not under Section 14, which has been enacted as an aid for execution of the decision taken by the secured creditors to take possession of the secured assets or documents. To put it differently the substantive provision entitling the secured creditor to take possession of the secured assets is contained in Section 13(4) and Section 14 merely contains a provision to facilitate taking over of possession without any impediment. If a person feels aggrieved by the action of the secured creditor to take possession of the secured asset, then he can file an application under Section 17(1) before the Tribunal and the Tribunal can, after examining the facts and circumstances of the case and evidence produced by the parties declare that the action taken by the secured creditor is not inconsonance with Section 13(4). The Tribunal can also direct the secured creditor to restore the possession of the secured assets of the borrower." [underlining added]
17. Learned counsel for 1st Respondent Bank submitted that for taking possession of the secured assets, it is open to the 1st Respondent Bank to invoke Sec.14 and for filing application under Sec.14, prior notice under Sec.13(4) is not necessary and that right of appeal/representation is available to the aggrieved person under Sec.17 of the Act as and when secured creditor decides to take possession of the property and at that stage he can also challenge the order passed by the Chief Metropolitan Magistrate/District Magistrate as the case may be under Sec.14 of SARFAESI Act.
18. In CD 2010 MHC 4627 [V.Noble Kumar v. The Authorised Officer, Standard Chartered Bank, Auto and Mortgage Collections, Chennai and others], the Division Bench of this Court considered the question whether before invoking Sec.14, notice under Sec.13(4) is necessary. Considering Secs.13(2) and 13(4) vis-a-vis Rule 8 and Sec.14 of the Act, the Division Bench of this Court held that the object behind Sec.13(4) cannot be bypassed as a matter of routine and that strict compliance of the provisions of Secs.13(2), 13(4) and Rule 8 is necessary, the Division Bench held as follows:- "12. The provisions of sub-section (4) of section 13 entitled the secured creditor to take possession of the secured assets of the borrower in the event of non-compliance of notice under section 13(2). A set of procedures is prescribed under the Rules. In terms of Rule 8 (1), before the authorised officer shall take or cause to be taken, possession of the property, he should deliver a possession notice prepared as nearly as possible in Appendix IV. Though a discretion is vested in the authorised officer insofar as the details contained in Appendix IV, no such discretion is conferred on the authorised officer in dispensation of a notice for having taken possession. In such event, at the time when section 13 (4) is invoked, a notice is mandatory. The provisions of Rule 8 read with Appendix IV have its own significance inasmuch as Appendix IV contemplates that the possession notice should indicate that the borrower having failed to repay the amount, notice is given to the borrower and the public in general that the authorised officer has taken possession of the property. Likewise, sub-rule (2) of rule 8 contemplates that the authorised officer shall publish the possession notice referred to in sub-rule (1) in two leading newspapers, one in vernacular language having sufficient circulation in that locality. These are all certain provisions whereby the borrower and the general public are put on notice by the authorised officer for having taken possession.
13. The provisions of the Rules contemplate the procedure for issuance of demand notice, procedure to be followed after issue of notice, valuation of movable secured assets, sale of movable assets and issue of certificate of sale. Similarly, it also provides the procedure for sale of immovable secured assets under rule 8. Though the secured creditor is entitled to invoke the provisions of section 13(4) in case of non-compliance of notice under section 13(2) by the borrower, the secured creditors may also invoke the provisions of section 14. The provisions of section 13(4) is available for the secured creditors to take possession of the immovable secured assets of the borrower and for that purpose, rule 8 must be followed and this rule is mandatory.
14. The above discussion on both the provisions of the Act and the corresponding Rules relating to taking over possession of immovable property would undoubtedly show that the secured creditor cannot bypass the above procedures without any justifiable cause. A reading of the provisions would show that only in the event when the secured creditor faces any obstruction to take possession of the property, he could approach the Chief Metropolitan Magistrate/District Magistrate under Section 14. It cannot be the intention of the legislature to allow a secured creditor to invoke the provisions of section 14 in all cases irrespective of the provisions of section 13(4) as such power may result in drastic consequences on the borrower over his property.
15. In that event a duty is case upon the secured creditor to satisfy Chief Metropolitan Magistrate/District Magistrate, as the case may be, as to the strict compliance of the provisions of sections 13(2) onwards till steps taken under section 13(4) and the Rule 8. Though the Chief Metropolitan Magistrate/District Magistrate discharges only a ministerial function when an order is passed under section 14, nevertheless he must be satisfied with, among other things, the compliance of the other provisions and in the event the learned Magistrate is not satisfied as to the compliance of the provisions, he may refuse to exercise the power under section 14. In this context, we may point out that though the borrower or the guarantor would be entitled to approach the Tribunal after the proceedings of section 13(4) such a right is not available to the borrower or the guarantor in the event the secured creditor approaches the Magistrate under section 14, in the wake of specific prohibition under section 14(3) of the Act, wherein the order passed under the said provision is final and the same cannot be questioned in any court or any authority of law. Therefore, as a necessary corollary, legality of such an order under section 14 could only be tested before the High Court in exercise of power under Article 226/227 of the Constitution of India. When such such an order is amenable to the judicial review of this Court, the order should be sustainable by strict compliance of the provisions of the Act and Rules, as otherwise, it is liable to be set aside. In this context we may refer to the judgment of a Division Bench of Andhra pradesh High Court in Sravan Dall Mill (P) Ltd. v. Central Bank of India and another [II (2010) Banking Cases 96 (DB)]. [underlining added]
16. Even after the order under section 14 is passed, for the purpose of taking possession, the authorised officer should comply with Rule 8 through the Advocate Commissioner appointed under section 14, as otherwise there will be a dichotomy resulting in a peculiar situation when a secured creditor exercises power under section 13(4) and when such a power is exercised under section 14. To elaborate, we may add that in the event section 13(4) is invoked, the procedure contemplated under that provision read with rule 8 must necessarily be followed by the secured creditor while taking possession of immovable property in the event the secured creditor bypassing the provisions of section 13(4) and the rule 8 and files an application under section 14, a situation may arise that the advocate commissioner may straight away take possession without there being compliance of any of the provisions of section 13(4) or rule 8. When both the provisions are read together, we could only come to the conclusion that the legislature had not intended to create such a situation. The object of section 14 is only to be invoked in case the secured creditor faces obstruction and not as a routine, bypassing the provisions of section 13(4). We may also add that it is the decision of the authorised officer to invoke either section 13(4) or section 14 depending upon the situation, but nevertheless, when section 14 is invoked, the power cannot be exercised arbitrarily as appointment of an advocate commissioner to take possession of the property will lead to deprivation of a property of an individual bypassing the safeguards made under rule 8. In this context, we may also refer that the Appendix IV to rule 8 obligates the authorised officer to give a notice to the borrower as to possession having been taken and the public in general are also made to know of such action taken by the authorised officer. We may also point out that though rules have been framed to give effect to the provisions of section 13(2) and 13(4) of the Act no rule has been framed as to how the advocate commissioner appointed by the Chief Metropolitan Magistrate/District Magistrate should take possession of the property, whether by again following the procedure contemplated under Rule 8 or not in the absence of the rule, the strict compliance of the provisions of section 13(4) and rule 8, even in case of possession taken by virtue of an order under section 14, assumes importance."
19. In III (2010) Banking Cases 495 (SC) [United Bank of India v. Satyawati Tondon and others], the Supreme Court considered the case where Sec.14 was invoked even before issuance of notice under Sec.13(4). In the said case, notice was issued under Sec.13(2) requiring the borrowers to pay Rs.23,22,972/- along with future interest and incidental expenses within sixty days. Upon receipt of the notice, Respondent No.1 thereon offered to pay a sum of Rs.18,00,000/- for settlement of the loan account, but the Appellant did not accept the offer and filed an application under Sec.14 of SARFAESI Act which was allowed by the District Magistrate/Collector, Allahabad vide order dated 25.08.2008. Thereafter, Respondent Bank issued notice dated 21.01.2009 to Respondent Nos. 1 and 2 thereon under Sec.13(4) of the Act. Thus in the said case before the Supreme Court [Satyawati Tondon's case], Sec.14 was invoked even before issuance of notice under Sec.13(4) of SARFAESI Act. Faced with the threat of losing the mortgaged property, Respondent No.1 filed Writ Petition in CM WP.No.55375/2009 before the Allahabad High Court contending that notices issued by the Appellant for recovery of the outstanding dues are ex facie illegal and liable to be quashed. In the said Writ Petition, the Bank has pleaded that Writ Petition is liable to be dismissed because of alternative remedy available to the Petitioner under Sec.17 of SARFAESI Act. Insisting upon self imposed restraint and holding that when there is alternative statutory remedy available, Article 226 of Constitution is not be invoked and that Article 226 of Constitution is not meant to be short circuited or circumvented the statutory procedure, the Supreme Court held as under:-
"18. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or Writs including the five prerogative Writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any 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 the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out inBaburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556]; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [(1998) 8 SCC 1] and Harbanslal Sahinia and another v. Indian Oil Corporation Ltd. and others [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.
21. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433] were echoed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others [(1985) 1 SCC 260] in the following words:- "Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."
20. In Satyawati Tondon's case before the Supreme Court, even though order under Sec.14 of the Act was passed on 25.08.2008 and Sec.13(4) notice was issued subsequently on 21.01.2009, the Supreme Court did not interfere with the order passed by the District Magistrate/Collector on 25.08.2008. The Supreme Court only held that the statutory remedies under DRT Act and SARFAESI Act cannot be ignored and ignoring the availability of statutory remedies under DRT Act and SARFAESI Act would have serious impact on the right of Banks and other financial institutions to recover their dues. The Supreme Court further held that exercising jurisdiction under Article 226 of Constitution of India, High Court was not justified in injuncting the Appellant Bank from taking action in furtherance of notice issued under Sec.13(4) of the Act.
21. The Judgment of the Division Bench of this Court in Noble Kumar's case [CD 2010 MHC 4627] is dated 27.07.2010 and the Judgment of the Supreme Court in Satyawati Tondon's case is dated 26.07.2010. If the borrower is dispossessed not in accordance with the provisions of the Act, then DRT is entitled to restore back the possession. When the secured creditor takes possession of the secured assets, right of appeal/representation is available to the aggrieved person under Sec.17 of the Act and the same can be exercised as and when the secured creditor decides to take possession of the property. Applying the ratio of Satyawati Tondon's case, when statutory remedies are available, Article 226 of Constitution of India cannot be invoked short circuiting or circumventing the statutory procedure and the Writ Petition is liable to be dismissed.
22. In the result, the Writ Petition is dismissed. However, Petitioner is at liberty to exercise his right of appeal/representation under Sec.17 of the Act as and when the secured creditor issues notice under Sec.13(4) of SARFAESI Act and takes possession of the property. There is no order as to costs. Consequently, the connected Miscellaneous Petition is also dismissed.