The High Court, relying on the Supreme Court decision in Celir LLP v. Bafna Motors, held that writ jurisdiction under Article 226 was not justified as an alternative remedy existed. The petition was disposed of with liberty to approach the Debt Recovery Tribunal.
Petition disposed of with liberty to approach the Debt Recovery Tribunal, Patna.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2716 of 2024
======================================================
Anwar Ali S/o Alimadad Ansari, R/o Mohalla Sariswa, P.O.- Murarpur, P.S.Harsiddhi, District- East Champaran (Motihari).
... ... Petitioner/s
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Saurav Singh For the Respondent/s : Mr. Prabhakar Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY ORAL ORDER
9 17-12-2024
The Hon’ble Supreme Court passed in Celir LLP v.
Bafna Motors(Mumbai) (P) Ltd. (2024) 2 SCC 1 has held as
under;
“105. We summarise our final conclusion as under:
(i) The High Court was not justified in exercising its writ jurisdiction under Article 226 of the Constitution more particularly when the borrowers had already availed the alternative remedy available to them under Section 17 of the SARFAESI Act.
(ii) The confirmation of sale by the Bank under Rule 9(2) of the Rules of 2002 invests the successful auction purchaser with a vested right to obtain a certificate of sale of the immovable property in form given in appendix (V) to the Rules i.e., in accordance with Rule 9(6) of the SARFAESI.
(iii) In accordance with the unamended Section 13(8) of the SARFAESI Act,
Patna High Court CWJC No.2716 of 2024(9) dt.17-12-2024 2/3
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 auction purchaser, 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 Rules of 2002. 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 Rules of 2002 and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser.
(iv) The Bank after having confirmed the sale under Rule 9(2) of the Rules of 2002 could not have withhold the sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower.
(v) The High Court under Article 226 of the Constitution could not have applied equitable considerations to overreach the outcome contemplated by the statutory auction process prescribed under the SARFAESI Act.
(vi) The two decisions of the Telangana High Court in the case of Concern Readymix (supra) and Amme Srisailam (supra) do not lay down the correct position of law. In the same way, the decision of the Punjab and Haryana High Court in the case of Pal Alloys (supra) also does not lay down the correction position of law.
(vii) The decision of the Andhra Pradesh High Court in Sri Sai Annadhatha
Patna High Court CWJC No.2716 of 2024(9) dt.17-12-2024 3/3
Polymers (supra) and the decision of the Telangana High Court in the case of K.V.V. Prasad Rao Gupta (supra) lay down the correct position of law while interpreting the amended Section 13(8) of the SARFAESI Act.”
2. This Court is not inclined to entertain the present
writ petition. The present writ petition is disposed of granting liberty to the petitioner to approach the Debt Recovery Tribunal, Patna for redressal of his grievance, if any.
3. With the above direction, the present writ petition stands disposed of.
(A. Abhishek Reddy, J)
Ayush/-
U
1 issue framed by the court
Whether the High Court is justified in exercising writ jurisdiction when alternative remedy under Section 17 of the SARFAESI Act exists?
Colour shows how this judgement treated each authority
Celir LLP v. Bafna Motors (Mumbai) (P) Ltd.Relied on¶13
Celir LLP v. Bafna Motors(Mumbai) (P) Ltd. (2024) 2 SCC 1 · Who else cites this
2 provisions across 2 enactments
Anwar Ali
The Uttar Bihar Gramin Bank
The Zonal Manager, Uttar Bihar Gramin Bank, East Champaran
The Regional Manager, Uttar Bihar Gramin Bank, East Champaran
The Branch Manager, Uttar Bihar Gramin Bank, Gayghat Branch, East Champaran
A. Abhishek Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
