Dismissed

Anil Rai, v. M/s.Cholamandalam Investment

Madras HC5 Jul 2017WP/7367/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a possession notice issued under the SARFAESI Act. Relying on Supreme Court precedents, the court held that the remedy under Section 17 of the Act was efficacious and the writ jurisdiction under Article 226 was not invoked. The contingent order was vacated.

What did the court decide?

Writ petition dismissed as not maintainable because of the availability of the statutory remedy under Section 17 of the SARFAESI Act.

Anil Rai, Vs M/s.Cholamandalam Investment — Pension and Retirement Benefits | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 5/7/2017

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR

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THE HONOURABLE MS.JUSTICE V.BHAVANI SUBBAROYAN

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WRIT PETITION NO.7367 OF 2017
1. Mr.Anil Rai
2. Mrs.Anita Rai ... Petitioners
Vs
M/s. Cholamandalam Investment and
Finance Company Limited
rep. by its Authorised Officer
"Dare House"
No.2 N S C Bose Road
Chennai 600 001. ... Respondent

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Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to the impugned notice issued by the first respondent herein SARFAESI/PN/002/2016,dated 24/12/2016, under Section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act and Rules and quash the same as illegal, incompetent, unconstitutional.

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Possession notice, dated 24/12/2017, issued under Section 13 (4) of the SARFAESI Act, reads thus:-

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"Whereas the undersigned being the Authorised Officer of M/s. Cholamandalam Investment and Finance Company Limited, having its registered office at 1st Floor, 'Dare House', No.2 N.S.C.Bose Road, Chennai 600 001 and inter alia at Plot No.17 K.P Tower, Opposite OS Motors, Upper Chopasani Road, Near Bombay Motor Circle, Jodhpur (Rajasthan) 342001 under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and in exercise of powers conferred under Section 13 (12) read with Rules 9 of the Security Interest (Enforcement) Rules, 2002 issued a demand notice dated 30/9/2016 to Mr/Ms.Anil Rai and Anita Rai hereinafter referred to as borrower and co-borrowers in loan A/c. No.XOHEJHE00000985320 & XIHEJHE00001266704 to repay the amount mentioned in the notice being Rs.2,02,50,112,22 (Rupees Two crore two lakhs fifty thousand one hundred twelve and paise twenty two only), as on 20/9/2016.

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The borrowers having failed to repay the amount, notice is hereby given to the borrowers in particular and the public in general that the undersigned has taken possession of the property described herein below in exercise of the powers conferred on him under Section 13 (4), 13 (12) of the said Act read with Rule 8 and 9 of the said Rules Security Interest (Enforcement) Rules, 2002 on this the 16th day of December 2016.

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The borrowers in particular and the public in general are hereby cautioned not to deal with the property and any dealings with the said property will be subject to the charge of M/s. Cholamandalam Investment and Finance Company Limited, for an amount of being Rs.2,02,50,112.22 (Rupees Two crore two lakhs fifty thousand one hundred and twelve and paise twenty two only, as on 20/9/2016 and interest and charges thereon.

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DESCRIPTION OF THE IMMOVABLE PROPERTY

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Plot No.190, comprised in Khasra No.426, Umaid Heritage, Defence Lab Road, Jodhpur 342 001 admeasuring 351 Sq.yards or 3159 sq.ft, together with building thereon

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https://hcservices.ecourts.gov.in/hcservices/

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and bounded on: North West - Road, South East - Fencing, North East - Plot No.191, South West - Plot No.189."

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Contending inter alia that no notice under Section 13 (2) was issued, providing an opportunity, to make a representation, under Section 13 (3-A), and thus, there is a violation of principles of natural justice, instant writ petition has been filed.

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Record of proceeding shows that while ordering notice of motion, a Hon'ble Division Bench of this Court, vide order, dated 23/6/2016, has directed the respondent not to take any cohesive steps.

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On this day, the respondent Bank has filed counter affidavit along with typed set of papers.

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Section 17 (1) of the SARFAESI Act, reads as follows:-

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"Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this Chapter (may make an application along with such fee, as may be prescribed) to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

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[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower]."

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Though contention of the writ petitioner has not been served, with a demand notice, under Section 13 (2) of the SARFAESI Act, 2002, has been disputed in the counter affidavit, in the light of the provision under Section 17 (1) of the Act, whereby a statutory alternative remedy is available under the SARFAESI Act, 2002, we are not inclined to delve into the disputed question of fact.

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Repeatedly, the Hon'ble Supreme Court has held that when there is an efficacious and alternate remedy under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act or Securitisation And Reconstructions of Financial Assets Act, 2002, as the case may be, a writ petition

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is not maintainable. We deem it fit to consider the following decisions.

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(i) In Precision Fastenings v. State Bank of Mysore, reported in 2010(2) LW 86, this Court held as follows:

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"This Court has repeatedly held in a number of decisions right from the decision in Division Electronics Ltd. v. Indian Bank (DB) Markandey Katju, C.J., (2005 (3) C.T.C., 513), that the remedy of the aggrieved party as against the notice issued under Section 13(4) of SARFAESI Act is to approach the appropriate Tribunal and the writ petition is not maintainable. The same position has been succinctly stated by the Hon'ble the Supreme Court in Transcore v. Union Of India (2006 (5) C.T.C. 753) in paragraph No. 26 wherein the Supreme Court has held as under: — “The Tribunal under the DRT Act is also the Tribunal under the NPA Act. Under Section 19 of the DRT Act read with Rule 7 of the Debts Recovery Tribunal (Procedure) Rules, 1993 (1993 Rules), the applicant bank or FI has to pay fees for filing such application to DRT under the DRT Act and, similarly, a borrower, aggrieved by an action under Section 13(4) of NPA Act was entitled to prefer an Application to the DRT under Section 17 of NPA.” (Emphasis added) "

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(ii) In Union Bank of India v. Satyawati Tondon, reported in 2010 (5) LW 193 (SC), the Hon'ble Apex Court has held as follows:

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"16. The facts of the present case show that even after receipt of notices under Section 13(2) and (4) and order passed under Section 14 of the SARFAESI Act, respondent Nos. 1 and 2 did not bother to pay the outstanding dues. Only a paltry amount of Rs. 50,000/- was paid by respondent No. 1 on 29.10.2007. She did give an undertaking to pay the balance amount in installments but did not honour her commitment. Therefore, the action taken by the appellant for recovery of its dues by issuing notices under Section 13(2) and 13(4) and by filing an application under Section 14 cannot be faulted on any legally permissible ground and, in our view, the Division Bench of the High Court committed serious error by entertaining the writ petition of respondent No. 1.

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There is another reason why the impugned order should be set aside. If respondent No. 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression ‘any person’ used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders 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 Constitution, a person must exhaust the remedies available under the relevant statute.

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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

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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 re-dressal 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 in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1=1999-2-L.W. 200 and Harbanslal Sahnia 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.

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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

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their discretion in such matters with greater caution, care and circumspection.

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Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act.

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In the result, the appeal is allowed and the impugned order is set aside. Since the respondent has not appeared to contest the appeal, the costs are made easy."

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(iii) In Saraspathy Sundararaj v. Authorised Officer and Assistant General Manager, State Bank of India, reported in (2010) 5 LW 560, the Court held as follows:

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"The petitioner has filed this writ petition praying for a Writ of Certiorarified Mandamus calling for the records relating to the possession notice dated 16.09.2004 issued by the respondent under the SARFAESI Act and consequently direct the respondent to effect the settlement in accordance with the SBI OTS-SME 2010 Scheme as contained in its letter dated 18.03.2010 and unconditionally restore physical possession of the six rooms taken physical possession by it at No. 29, Sarojini Street, T. Nagar, Chennai – 17, with such damages.

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..... When a specific forum has been created which enables the borrower to challenge the action of the financial institution by filing necessary petition under Section 17, the petitioner is not entitled to invoke the writ jurisdiction of this Court. What could not be achieved by the petitioner by filing a petition before the appropriate Forum, which is at present barred by period of limitation, could not be permitted to be achieved by extending the jurisdiction conferred to this Court under Article 226 of The Constitution of India. Above all, since the petitioner has violated the terms and conditions of the loan by transferring the property in favour of her son, this Court is not inclined to entertain the petition.

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In this connection, we are fortified by the decision of the Honourable Supreme Court reported in ( United Bank of India v. Satyawati Tondon and others ) III (2010) BC 495 (SC) = 20105-L.W. 193, wherein in para Nos. 17 and 18, it was

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held thus:—

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“17. …Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders 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 Constitution, a person must exhaust the remedies available under the relevant statute. 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

¶47

https://hcservices.ecourts.gov.in/hcservices/

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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 in Baburam 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 Sahnia 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.

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In the light of the decisions and discussion, we are of the view that the instant writ petition, is not maintainable and accordingly, the same is dismissed. Interim order granted, on 23/6/2017, is vacated.

¶50

Since writ petition was pending in this Court from 17/2/2017, it is alays open to the petitioner, to explain the period of limitation, if he chooses to challenge the possession notice.

¶51

Registry is directed to return the original possession notice, dated 24/12/2016, impugned in this writ petition, after taking an attested copy of the same from the learned counsel for the petitioner, so as to enable the petitioner, to move the forum.

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No Costs. Consequently, connected, Writ Miscellaneous Petition is closed.

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Sd/-
Asst.Registrar (CS VI)
/true copy/
Sub Asst. Registrar
mvs.
To:
The Authorised Officer
M/s.Cholamandalam Investment and
Finance Company Limited
"Dare House"
No.2 N S C Bose Road
Chennai 600 001.
Copy To:
The Section Officer,
VR Section,High Court, Madras.
+1cc to M/s.P.Anada Kumar, Advocate in sr.no.47205
+1cc to M/s.K.J.Parthasarathy, Advocate in sr.no.46822
Writ Petition No.7367 of 2017
SAI(CO)
NR 17/07/2017

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Anil Rai, v. M/s.Cholamandalam Investment

Case brief

What is this about?

What did the court decide?

Anil Rai, v. M/s.Cholamandalam Investment

Case brief

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What did the court decide?

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