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TMI Blog2019 (2) TMI 1997X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent, restore the petitioner's possession to the premises viz., land and building situated at Commercial Plot No.1, 7th Avenue, Besant Nagar, Chennai - 600 090 comprised in Survey No.154 Part, Thiruvanmiyur Village, Mylapore - Triplicane Taluk, measuring about 7 grounds and 963 sq.ft. and all medical equipments, movables and fixtures, etc therein and further direct the respondents not to interfere in any manner with the petitioner's peaceful enjoyment and possession of the said premises and all their medical equipments, movables and fixtures, etc therein. 2. It is the case of the petitioner that they availed loan from the 1st respondent and as the borrower committed default in repaying the loan amount, the 1st respondent declared the petitioner's loan account as irregular and classified the same as a Non Performing Asset. Thereafter, the 1st respondent issued a notice dated 08.08.2017 under Section 13(2) of the SARFAESI Act calling upon the petitioner and their guarantors to discharge the outstanding loan amount of Rs. 44,36,67,947/- along with future interest. 2.1. According to the petitioner, they sent a reply dated 03.12.2017, as contemplated under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such opportunity, till such time the sale notice is issued to them as per the provisions of the SARFAESI Act. 3.3.With regard to the reply dated 03.10.2017 sent by the petitioner, the respondent has stated that in their reply the petitioner admitted the demand made by the 1st respondent and has stated that they are taking earnest steps to settle the outstanding amount at the earliest and requested the 1st respondent to grant three months time for settling the outstanding dues, therefore, the petitioner has not disputed the demand made by the 1st respondent and has only sought for time to settle the outstanding dues. In these circumstances, the 1st respondent prayed for dismissal of the Writ Petition. 4. Heard Mr.P.S.Raman, learned Senior Counsel appearing for Mr.N.Raja Senthoor Pandian and Mr.Kunal Vijani, learned counsel on record for the petitioner and Mr.AR.L.Sundaresan, learned Senior Counsel for Mr.T.Saikrishnan, learned counsel on record for the 1st respondent. 5. The only contention raised by Mr.P.S.Raman, learned senior counsel appearing for the petitioner is with regard to the non consideration of the reply dated 03.10.2017 sent by the petitioner to the 1st respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sub-section (1) of Section 245-S of the Act insofar as it makes the advance ruling of the authority binding on the applicant, in respect of the transaction and on the Commissioner and Income Tax Authorities subordinate to him, does not bar the jurisdiction of this Court under Article 136 of the Constitution of the jurisdiction of the High Court under Article 226 and 227 of the Constitution to entertain a challenge to the advance ruling of the authority." In our view, therefore, the decision of the Chief Metropolitan Magistrate or the District Magistrate can be challenged before the High Court under Article 226 and 227 of the Constitution by any aggrieved party and if such challenge is made, the High Court can examine the decision of the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, in accordance with the settled principles of law." (ii)2018 (6) CTC 1 [Bharath Post Graduate College, through its Authorized Signatory, SPE Trust, through its Authorized Signatory, Bhaskar, No.8, Karpagambal Nagar, Mylapore, Chennai - 4 Vs. Indiabulls Housing Finance Limited, rep by its Manager, Old No.60-A, New No.20/3, 1st and 3rd Floors, Apex Chambers, Thiyagaraya R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, N.Venkateswaran, NPA Management Group, No.115, Annasalai, Saidapet, Chennai - 15 and 5 others] wherein we have held that the remedy open to the petitioner for challenging the order passed by the District Collector under Section 14 of the SARFAESI Act is by way of an appeal under Section 17 of the SARFAESI Act before the Debts Recovery Tribunal. 8. On a careful consideration of the materials available on record, the submissions made by the learned senior counsel on either side and also considering the judgments relied upon by the learned senior counsel on either side, it is not in dispute that the petitioner had availed loan from the 1st respondent and that a notice dated 08.08.2017 was issued under Section 13(2) of the SARFAESI Act, calling upon the petitioner to pay a sum of Rs. 44,36,67,947/- along with future interest within sixty days. Thereafter, the petitioner contended that they sent a reply dated 03.10.2017 to the 1st respondent, however, the same was not considered, which is a clear violation of provisions of Section 13(3-A) of the SARFAESI Act. However, the 1st respondent, in their rejoinder dated 19.10.2017, have stated that the reply dated 03.10.2017 was received by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the entire dues once for all. Thanking you Yours Sincerely Dr.P.Mahalingam, Chairman & Managing Director, Santosh Hospitals Pvt., Ltd., No.1, 7th Avenue, Besant Nagar, Chennai - 600 090. Cell: 9811199341 / 9810203149 11. From the above reply it is also clear that the petitioner has not disputed the claim made by the 1st respondent. Infact, they specifically admitted the claim and only sought three months time to settle the outstanding. But inspite of seeking for three months time to settle the outstanding dues as early as on 03.10.2017, it is pertinent to note that even till date, the petitioner has not settled the loan account with the 1st respondent. By their rejoinder dated 19.10.2017, the 1st respondent informed the petitioner that no further time would be granted and that they have taken symbolic possession of the secured asset under the provisions of Section 13(4) of the SARFAESI Act on 11.10.2017. 12. It is also pertinent to note that even before this Court, when the matter came up on 11.10.2018, an undertaking was made by the petitioner that the entire dues payable to the respondent would be paid within a period of 45 days. To that effect, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to an aggrieved person under the SARFAESI Act are both expeditious and effective. 15. In the case on hand, the petitioner has not approached the Debts Recovery Tribunal, instead, he has directly filed the above Writ Petition challenging the action taken under Section 14 of the Act. 16.1. In the judgment reported in (2018) 3 Supreme Court Cases 85 [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C.], the Hon'ble Supreme Court has held as follows: "... 10.In Satyawati Tandon [United Bank of India Vs. Satyawati Tondon, (2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260], the High Court had restrained [Satyawati Tondon Vs. State of U.P., 2009 SCC Online All 2608] further proceedings under Section 13(4)of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding:- "43.Unfortunately, the High Court overl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd., (2003) 3 SCC 524 : 2003 SCC (Cri) 762; Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 and SBI v. Allied Chemical Laboratories, (2006) 9 SCC 252)" 13. In Ikbal, Sri Siddeshwara Coop. Bank Ltd., Vs. Ikbal, (2013) 10 SCC 83 : (2013 4 SCC (Civ) 638, it was observed that the action of the Bank under Section 13(4) of the 'SARFAESI Act' available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (United Bank of India Vs. Satyawati Tondon, (2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260), observing: (Ikbal, Sri Siddeshwara Coop. Bank Ltd., Vs. Ikbal, (2013) 10 SCC 83 : (2013 4 SCC (Civ) 638, pp.94-95, paras 27-28) "27.No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expressed in United Bank of India Vs. Satyawati Tondon, (2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260), has also not been kept in mind before passing the impugned interim order:- "46. It must be remembered that stay of an action initiated by the State and/or its agencies/ instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/ institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556, Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 and Harbanslal Sahnia v. Indian Oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tyawati Tondon & Ors., (2010) 8 SCC 110, this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand: "42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court Cases 782 [Kanaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others], the Hon'ble Supreme Court held as follows: "... 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 affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT. 23.In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh Vs. Natinal Insurance Co. Ltd., (2003) 3 SCC 524 : 2003 SCC (Cri) 762; Surya Dev Rai Vs. Ram Chander Rai, (2003) 6 SCC 675 and SBI VS. Allied Chemical Laboratories, (2006) 9 SCC 252)." 18.Following ..... 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