Writ Petition No. 18117 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 18117 OF 2025 (GM-RES) BETWEEN: 1. KALLENGADA P SOMAIAH (SOMAIAH K P) AGED ABOUT 55 YEARS, S/O LATE K A POOVAIAH, HYSODLUR VILLAGE AND POST, PONNAMPET TALUK KODAGU DISTRICT KARNATAKA-571249. REPRESENTED BY ITS SPA HOLDER, K V PONNANNA, AGED ABOUT 28 YEARS, S/O K C VISHWANATHA, RESIDENT OF HYSODLUR VILLAGE, PONNAMPET TALUK, KODAGU DISTRICT 571249. (BY SMT. YUKTHA N, ADVOCATE FOR SRI. AJAY N.,ADVOCATE) AND: 1. THE CANARA BANK REP BY ITS CHAIRMAN, AND MANAGING DIRECTOR, HEAD OFFICE 112, J C ROAD, BENGALURU 560002. 2. CANARA BANK REP BY ITS AUTHORISED OFFICER Digitally signed by VIDYA G R Location: HIGH COURT OF KARNATAKA …PETITIONER - 2 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR PONNAMPET BRANCH, PONAMPET, PIN 571216. 3. CANARA BANK ASSET RECOVERY AND MANAGEMENT BRANCH (ARM BRANCH) CANRA BANK BUILDING, BALMATTA ROAD, HAMPANKATTE MANGALURU PIN 575001.
Legal Reasoning
(BY SRI. K V LOKESH., ADVOCATE) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER PASSED BY THE HONBLE SENIOR CIVIL JUDGE AND CMJ KODAGU MADIKERI IN CRL MISC NO. 23/2025 DTD 19.02.2025 VIDE ANNX-A. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV ORAL ORDER Petitioner has sought for setting aside the order passed in Crl.Misc.No.23/2025 at Annexure-A. 2. Various contentions have been raised including that the SARFAESI Act does not apply, in light of the exemption under Section 31(1) of the SARFAESI Act which relates to security interest created in agricultural land. Various other contentions have been raised. - 3 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR 3. Learned counsel appearing for the respondent - Bank submits that any finding including as regards the jurisdictional issue raised, which is a mixed question of fact and law and in light of the substantive remedy available to the petitioner in terms of the provisions of the SARFAESI Act, petitioner may be relegated to avail of the substantive remedy. 4. In light of the contentions raised, it is relevant to take note of the observations of the Apex Court in the case of Union Bank of India v. Satyawati Tondon and Others - (2010) 8 SCC 110 that the appropriate remedy would be to relegate the petitioner to seek for substantive remedy before the Debt Recovery Tribunal. The relevant observations of the Apex Court are as follows: "43. Unfortunately, the High Court 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 - 4 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR 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 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 - 5 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR 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 and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." - 6 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR 5. In light of the observations made by the Apex Court, it can be noticed that several factual contentions raised by the petitioner are the matters that cannot be adjudicated in the present proceedings. 6. Accordingly, the petition is disposed off relegating the petitioners to avail of the substantive remedy as regards the impugned proceedings. All contentions of both the sides are kept open. 7. In light of disposal of writ petition, it would meet the ends of justice by directing the respondent - Bank not to take any precipitative steps for a period of two weeks from today. 8. The interim protection granted under this order is only to enable the petitioners to avail of the substantive remedy and must not be considered to be an order passed on the basis of adjudication on merits. Upon the lapse of the time stipulated, the protection granted would cease to operate and the authorities before whom petitioners may - 7 - NC: 2025:KHC:22129 WP No. 18117 of 2025 HC-KAR approach are to look at the matter afresh uninfluenced by the observations made herein. 9. Needless to state that while considering the aspect of limitation, in the event the proceedings are instituted before the DRT, time spent before this Court may be taken note of appropriately. 10. In light of the contention raised by the petitioner placing reliance on Section 31 of the SARFAESI Act, needless to state that upon necessary pleadings made in that regard, the Debts Recovery Tribunal to address the jurisdictional issue before proceeding further. All contentions are kept open.
Decision
11. Accordingly, petition is disposed off. Sd/- (S SUNIL DUTT YADAV) JUDGE VP