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TMI Blog2016 (12) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of alternative statutory remedy has to be adhered to steadfast. This petition is not entertained and is hereby dismissed. It is clarified that this Court has not gone into the merits of the case of the petitioners. It will be open for the petitioners to raise all the contentions and prayers before the Tribunal in the Appeal which they may opt to prefer. Dismissed as above. - SPECIAL CIVIL APPLICATION NO. 5364 of 2016 - - - Dated:- 5-12-2016 - MR. N.V.ANJARIA, J. FOR THE PETITONER : MR BK. RAJ, ADVOCATE FOR THE RESPONDENT : MR ROHAN YAGNIK, AGP, MR VIVEK B GUPTA, ADVOCATE CAV JUDGMENT Heard learned advocate Mr.B.K. Raj for the petitioners and learned advocate Mr.Vivek Gupta for the fourth respondent. Learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunicated to the petitioner by letter dated 12th November, 2012. 4. learned advocate for the petitioner assailed the impugned notice on the ground that Arbitrator has passed the award and execution proceedings in respect thereof was pending, taking action by the fourth respondent-Kotak Mahindra Bank under the SERFAESI Act would not be permissible in law and would amount to doubly prosecuting the petitioners. 4.1 On the other hand, learned advocate for the fourth respondent relied on decision of this Court in Ketanbhai Umedsinh Padhiar Vs Kotak Mahindra Bank being Special Civil Application No.11377 of 2015 decided on 01st April, 2016 and submitted that the petitioner as an alternative remedy under Section 17 of the Securitisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed at the stage of Section 13(4) of the Act. The stage is obtained where the petitioners have a clear alternative statutory remedy available in terms of preferring Appeal under Section 17 of the Act as mended as per the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016. 5.2 In Kanaiyalal Lanchand Sachdrv Vs State of Maharashtra [(2011) 2 SCC 782] , the Supreme Court in paragraphs 21 and 22 observed as under. 21. In Indian Overseas Bank Anr. Vs. Ashok Saw Mill, the main question which fell for determination was whether the DRT would have jurisdiction to consider and adjudicate post Section 13(4) events or whether its scope in terms of Section 17 of the Act will be conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT. 22.We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4), and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person 1 affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT. 5.3 The same principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. 5.4.1 Sounding caution, the Supreme Court observed further thus, ...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. It is hoped and trusted that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection. 5.5 The above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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