High Court · 2025

W.P.(MD)No.14727 of 2025BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 02.06.2025CORAM:THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAMANDTHE HONOURABLE DR.JUSTICE A.D.MARIA CLETEW.P.(MD)No.14727 of 2025andW.M.P.(MD)Nos.10978 & 10979 of 2025Muthuselvi... PetitionerVs.The Authorized Officer,Aptus Value Housing Finance India Ltd.,256A, Ramesh Murugan Complex,Subban Street, Theni,Rep., by its Authorized Officer,M.Mahimairajan ...RespondentPRAYER: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to the possession taken as per the order dated 19.05.2025 passed by the learned Chief Judicial Magistrate, Theni in Cr.M.P.No.688 of 2025 and quash it as illegal and consequently, to direct the respondent Bank to give breathing time to the petitioner and accept the petitioner's part payment and thereby reclassify the loan account as performing account and allow to pay the EMI in installments.1/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025For Petitioner: Mr.P.JeyasankarORDER(Order of the Court was made by S.M.SUBRAMANIAM, J.)The Writ on hand has been instituted questioning the validity of the order passed by the learned Chief Judicial Magistrate, Theni, dated 19.05.2025 made in Cr.M.P.No.688 of 2025. Admittedly, an efficacious alternative remedy is contemplated under SARFAESI Act. Therefore, the Writ proceedings are not maintainable, in view of the judgment of the Hon'ble Supreme Court of India in the case of Celir LLP Vs. Bafna Motors (Mumbai) Private Limited and others reported in (2024) 2 SCC 1. Paragraph Nos.97, 98, 110 and 110.1 would be relevant in this context and have been extracted herein:-“97.This Court has time and again, reminded the High Courts that they should not entertain petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person under the provisions of the SARFAESI Act. This Court in Satyawati Tondon [United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260] made the following observations : (SCC pp. 123 & 128, paras 43-45 & 55)2/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025“43. Unfortunately, the High Court [Satyawati Tondon v. State of U.P., 2009 SCC OnLine All 2608] overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the 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.44. 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 3/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025Government, 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.45. 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 the particular legislation contains a detailed mechanism for redressal of his grievance.***55. 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 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 4/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”98.In CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , this Court in para 15 made the following observations : (SCC p. 611, para 15)“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supdt. of Taxes, 1964 SCC OnLine SC 13] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. 5/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”110.We summarise our final conclusion as under:110.1. 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.”2.In view of the above legal position, granting liberty to the petitioner to approach the competent forum for redressal of grievances, this Writ Petition stands dismissed. It is made clear that in the event of filing any petition before the competent forum, such forum may consider the petition to condone the delay in respect of the period during which this Writ Petition is pending before this Court. No costs. Consequently, connected miscellaneous petitions are closed. (S.M.S., J.) & (A.D.M.C., J.) 02.06.2025 NCC : Yes / NoIndex : Yes / NoInternet : Yes / NoYuva6/7 https://www.mhc.tn.gov.in/judis W.P.(MD)No.14727 of 2025S.M.SUBRAMANIAM, J.ANDDR.A.D.MARIA CLETE, J.YuvaW.P.(MD)No.14727 of 202502.06.20257/7