M/S Roopesh Provision Stores Vs Authorized Officer/Manager

M/S. ROOPESH PROVISION STORES REPRESENTED BY SRI RANGASWAMY S/O. NARASAIAH AGED ABOUT 54 YEARS RESIDING AT NO.2345, 1ST STAGE DEVANNUR LAYOUT N.R. MOHALLA MYSURU-570 019. REGISTERED UNDER SHOP AND ESTABLISHMENT ACT, 1947.

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…PETITIONER

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(BY SRI MURTHY D.L., ADVOCATE)

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AND:

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Digitally signed by VIDYA G R Location: HIGH COURT OF KARNATAKA

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AUTHORIZED OFFICER/MANAGER ARKA FINCAP LIMITED REG. OFFICE AT NO.2504, ONE LODHA PALACE S.B MARG, LOWER PAREL MUMBAI-400 013. REGISTERED UNDER PUBLIC LIMITED COMPANY ACT, 2013.

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MR. MOHAMMED ARSHAD S/O. LATE KHALEELUR RAHAMAN NO.4828, THYAGARAJ COLONY NANJANGUD (RURAL) MYSORE-571 301.

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…RESPONDENTS

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NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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(BY MS. ANUPARNA BORDOLOI, ADVOCATE; SRI SWAROOP S., ADVOCATE FOR PROPOSED R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 27 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE POSSESSION NOTICE DATED 24.05.2024 ISSUED BY THE RESPONDENT BANK WHICH IS PRODUCED AT ANNEXURE-A AND A1.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV

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ORAL ORDER

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The present petition has been filed seeking for setting aside of the possession notice dated 24.05.2025 at Annexure - A. The proceedings relate to the loan obtained by the petitioner from the ARKA Fincap Limited.

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Learned counsel for the respondent submits that any measure under Section 13 can be challenged by taking recourse to Section 13 of the SARFAESI Act and accordingly the present petition is not maintainable. It is

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NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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further submitted that the public auction was conducted on 16.12.2024.

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It is the further submission of the learned counsel for the respondent Bank that sale certificate has also been issued.

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It is the further contention of the counsel for the respondent - Bank that in terms of the OTS proposal have also not been honoured and accordingly petitioner cannot be extended any relief from the hands of the respondent - Bank.

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It is also contended that once the auction notice is

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issued in terms of Rule 13(8) in light of law laid down in

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the case of Celir-LLP vs Bafna Motors (Mumbai) Pvt.

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Ltd. and Others reported in (2024) 2 SCC 1 right of redemption is not available.

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It is further submitted that the interim order passed by this Court on 05.09.2024 is also not complied with and accordingly petitioner is not been granted any discretionary release including of protection.

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NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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Learned counsel for the respondent - Bank has filed with memo, copy of the sale certificate issued. Same is taken on record.

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Taking note of the contentions raised by the respondent, it is clear that the proceedings have gone to an advanced stage. Prima facie, right of redemption does not appear to be available in light of the legal possession as noticed above.

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However, it is clear that any relief of the petitioner ought to have been raised only by way of a substantive remedy before the Debt Recovery Tribunal under Section 17 of the Act.

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In light of the contentions raised it is relevant to take note of the observations of the Apex Court in the case of Union Bank of India vs. Satyawati Tondon and Others - (2010) 8 SCC 110 that the appropriate remedy would be to relegate the petitioner to seek for substantive remedy before the Debt Recovery Tribunal. The relevant observations of the Apex Court are as follows:

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NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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43. 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 a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the 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.

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44. 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

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NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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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.

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45. 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.

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55. 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 the Sarfaesi Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other

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7 - NC: 2025:KHC:20083 WP No. 24513 of 2024

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HC-KAR

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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.

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In light of the observations made by the Apex Court,

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it can be noticed that several factual contention raised by the petitioner are the matters that cannot be adjudicated in the present proceedings.

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Accordingly, petition is disposed off . Substantive remedy, if any, of the petitioner is kept open to be taken recourse to in accordance with law. The interim order stands discharged.

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Sd/(S SUNIL DUTT YADAV) JUDGE

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DHA List No.: 1 Sl No.: 9

M/S Roopesh Provision Stores v. Authorized Officer/Manager

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M/S Roopesh Provision Stores v. Authorized Officer/Manager

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