Madan Mohan Mallik Vs M/S.Jana Small Finance Bank Ltd, Bengaluru

This writ petition has been filed by the petitioner Madan Mohan Mallik seeking for a direction to the opposite party-Bank to settle the loan account bearing No.33229440000391 through One Time Settlement (OTS) without evicting the petitioner and his family members from the mortgaged property i.e. residential building standing over Plot No. 258 of Khata No.281/721 under Jajabhairaba, P.S. Choudwar, Tahasil- Tangi Choudwar in the district of Cuttack.

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When a submission was made by the learned counsel for the petitioner on 25.06.2025 that the petitioner is ready and willing to pay the outstanding dues of the opposite party-Bank within a specified

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period and that he would file an affidavit in that respect, we adjourned the matter. Pursuant to such order, learned counsel for the petitioner has filed an affidavit on 11.07.2025 wherein in paragraphs 4, 5 and 6 it is mentioned as follows:

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“4. That I availed a loan of Rs.5,10,000/- in the year 2021 from M/s Jena Small Finance Bank Limited through its Cuttack Branch, vide Loan Account No.83229440000391.

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That after retirement from service, I was faced some difficulties and unable to pay the Bank instilments in time, so that Bank issued possession notices on dated 18.04.2024 U/s. 13 (4) of SARFAESI Act, 2002, without considering my OTS proposal.

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That Except mortgaged land, I have an AO.02 dec. land in Mouza- Jajabhairab. Now I am trying to sale the said land to outsider. So I am requiring three months time to sale the said land and repay the outstanding loan dues, through One Time Settlement.”

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On perusal of the said affidavit so also Annexure1, it appears that possession notice under section 13(4) of the SARFAESI Act, 2002 has already been issued on 08.08.2024.

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In the case of Celir LLP -Vrs.- Bafna Motors (Mumbai) (P) Ltd. reported in (2024) 2 Supreme Court Cases 1 , it has been held as follows:

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“110.3. In accordance with the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. In other words, the borrower's right of redemption did not stand terminated on the date of the auction-sale of the secured asset itself and remained alive till the transfer was completed in favour of the auctionpurchaser, by registration of the sale certificate and delivery of possession of the secured asset. However, the amended provisions of Section 13(8) of the SARFAESI Act, make it clear that the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the 2002 Rules. In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the 2002 Rules and not till the completion of the sale or transfer of the

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secured asset in favour of the auctionpurchaser.

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The Hon’ble Supreme Court in the case of M/s. South Indian Bank Ltd. & Ors. -Vrs.- Naveen Mathew Philip & Anr. reported in 2023 LiveLaw (SC) 320 has deprecated the interference of the High Courts in matters pertaining to the SARFAESI Act, where efficacious alternative remedy has been prescribed in the statute itself. The Hon’ble Court went on to hold as follows:

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“16. Approaching the High Court for the consideration of an offer by the borrower is also frowned upon by this Court. A writ of mandamus is a prerogative writ. In the absence of any legal right, the Court cannot exercise the said power. More circumspection is required in a financial transaction, particularly when one of the parties would not come within the purview of Article 12 of the Constitution of India. When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant cannot avoid the noncompliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative.”

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In view of the settled position of law as held hereinabove so also in the case of Kanaiyalal Lalchand Sachdev & Ors. -Vrs.- State of Maharashtra & Ors. reported in (2011) 2 Supreme Court Cases 782 , since alternative and

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efficacious remedy is available to the petitioner, we are not inclined to entertain this writ petition. However, we grant liberty to the petitioner to seek appropriate relief before the appropriate forum in accordance with law or approach the Bank for settlement of the loan account. If such an approach is made, the same shall be considered in accordance with law. It is made clear that we have not expressed any opinion on the merits of the case.

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With this observation, the writ petition stands disposed of.

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Issue urgent certified copy as per Rules.

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( S.K. Sahoo) Judge

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(S.S. Mishra) Judge

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PKSahoo

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Signature Not Verified