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TMI Blog2018 (10) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... , we do not find that there is any extraordinary / exceptional circumstances, invoking the jurisdiction of this Court under Article 226 of the Constitution of India. In Satyawati Tondon's case, [2010 (7) TMI 829 - SUPREME COURT] the Hon'ble Supreme Court has held that the tribunals constituted under the SARFAESI Act, 2002, is competent to decide all questions of law and fact - Grounds raised in this instant writ petition, can always be urged before the tribunal. Petition dismissed. - W.P.No.19634 of 2018 And W.M.P.No.23074 of 2018 - - - Dated:- 1-8-2018 - Mr. S. Manikumar And Mr. Subramonium Prasad JJ. For the Petitioner : Mr.N.Viswanathan JUDGMENT S UBRAMONIUM PRASAD, J. The instant Writ Petition is for an appropriate Writ, to call for the records pertaining to the impugned notice dated 23.07.2018 issued by the 1st respondent herein under Section 13(4)(a) of SARFAESI Act, 2002, demanding possession of the secured assets from the borrower/petitioner herein and to quash the same, in so far as, the said impugned notice has been issued without jurisdiction and authority of law contrary to the provisions of the SARFAESI Act and in total violation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid by the petitioner at the time when the 1st respondent paying the customs duty liabilities on the subject imported goods. 6. The petitioner submits that they were asked to execute a term loan agreement without the 1st respondent providing any loan to them, except for sale of the machine and also further obtained a hypothecation agreement of the machines owned by the petitioner in addition to the earlier hypothecation agreement dated 16.06.2016. A sale invoice was issued by the 1st respondent. 7. The petitioner stated that the 1st respondent unequivocally agreed to remit the entire customs duty along with interest incurred on the imported machine within a maximum period of three months. The petitioner were prompt in payment of EMI of ₹ 1,60,000/-. 8. The petitioner wrote a letter to the 1st respondent for the payment of customs duty otherwise the liabilityto pay customs duty would be fastened on them. However, the petitioner contended that the respondent initiated proceedings under SARFAESI Act by declaring the account of the petitioner as NPA. Notice under Section 13(2) of the Act, calling upon the petitioner to discharge the total liabilities to a sum of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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) (ii) In Union Bank of India v. Satyawati Tondon, reported in 2010 (5) LW 193 (SC) , the Hon'ble Apex Court at paragraph Nos.16 to 18 and 27 to 29, held as follows: 16. The facts of the present case show that even after receipt of notices under Section 13(2) and (4) and order passed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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. ... 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 favo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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