Division Bench appeal against an order entertaining a writ petition challenging a SARFAESI Section 13(4) notice despite the borrower's remedy before the DRT under Section 17. Relying on United Bank of India v. Satyawati Tondon, the court held the Single Judge's order unsustainable and set it aside.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Special Appeal Writ No. 668/2023
Aditya Birla Finance Limited, through Authorized Officer, 2nd Floor, Shakun Emporia, C-23, Ashok Marg, C-Scheme, Jaipur (Rajasthan).
----Appellant
Versus
Bheru Lal Salvi S/o Late Bhgwati Lal Salvi, Aged About 39 Years, R/o 4, Keshav Nagar, University Road, Udaipur (Rajasthan).
----Respondent
For Appellant(s) : Mr. Lakshya Singh Udawat For Respondent(s) : Mr. Rajendra Singh Rathore
HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Judgment
16/01/2024
1. Learned counsel for the appellant has submitted that vide impugned order dated 20.07.2023, learned Single Judge entertained the writ petition being S.B. Civil Writ Petition No.9987/2023 (Bheru Lal Salvi Vs. Aditya Birla Finance Ltd.) filed by the respondent without considering the fact that the respondent is having an alternate and efficacious remedy to approach the Debt Recovery Tribunal (hereinafter to be referred as ‘the DRT’) under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (hereinafter to be referred as ‘the SARFAESI Act’). 2. Learned counsel for the appellant has placed reliance on the decision rendered by the Hon’ble Supreme Court in United Bank
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of India Vs. Satyawati Tondon & Ors. reported in AIR 2010 SC 3413 and argued that the Hon’ble Supreme Court has specifically held that the High Court should not interfere in the matter particularly in the loan matters when the aggrieved person is having an alternate remedy under the SARFAESI Act.
3. Learned counsel for the appellant has, therefore, submitted that the impugned order passed by the learned Single Judge may kindly be set aside. 4. Learned counsel for the respondent has submitted that the respondent has deposited amount of Rs.3,00,000/- as directed by the learned Single Judge vide impugned order and he is ready to pay the regular installments, therefore, there is no illegality in the impugned order.
5. Heard learned counsel for the parties.
6. The respondent filed the writ petition before the learned Single Judge being aggrieved with the action of the appellant of issuing notice under Section 13(4) of the SARFAESI Act, though, he has a remedy to challenge the proceedings initiated against him before the DRT as provided under Section 17 of the SARFAESI Act but instead of availing the said remedy, he approached directly to the leaned Single Judged of this Court by filing writ petition under Article 226 of the Constitution of India.
7. Hon’ble Supreme Court in case of United Bank of India (supra) has held as under :-
“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
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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 their discretion in such matters with greater caution, care and circumspection.”
8. In view of the above, we are of the view that the impugned order passed by the learned Single Judge cannot be sustained.
9. Hence, this special appeal writ is allowed. The impugned order dated 20.07.2023 passed by learned Single Judge in S.B. Civil Writ Petition No.9987/2023 (Bheru Lal Salvi Vs. Aditya Birla Finance Ltd.) is set aside.
(RAJENDRA PRAKASH SONI),J
(VIJAY BISHNOI),J
Abhishek Kumar S.No.68
1 issue framed by the court
Whether the Single Judge should have entertained a writ petition under Article 226 when an alternate remedy exists under Section 17 SARFAESI Act.
Colour shows how this judgement treated each authority
United Bank of India Vs. Satyawati Tondon & Ors.Relied on¶7
AIR 2010 SC 3413 · Who else cites this
2 provisions across 2 enactments
Aditya Birla Finance Limited
Bheru Lal Salvi
Vijay Bishnoi
Rajendra Prakash Soni
As recorded by the court registry
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