Writ Petition No. 32708 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 32708 OF 2024 (GM-RES) BETWEEN: 1. SMT. T. MANORAMA WIFE OF LATE THAMMINENI RANGANNA AGED ABOUT 75 YEARS, RESIDING AT NO.84, VIDYAGIRI NAGAR NEAR FIRE STATION, BELLARY - 583 101 REPRESENTED BY HER POWER OF ATTORNEY HOLDER SRI ARVIND KASHYAP SON OF LATE SHRI P KRISHNA MURTHY AGED ABOUT 47 YEARS, RESIDING AT NO.302, BLOCK 29, JEEVAN SURABHI LIC APARTMENTS 10TH B CROSS, JP NAGAR 1ST PHASE BENGALURU - 560 078. (BY SRI. ANANDA GANGENURA., ADVOCATE) AND: 1. THE FEDERAL BANK LTD., HAVING ITS REGISTERED OFFICE AT FEDERAL TOWERS, ALWAYE Digitally signed by VIDYA G R Location: HIGH COURT OF KARNATAKA … PETITIONER - 2 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR ERNAKULAM KERALA - 683 101 ALSO AT LOAN COLLECTION AND RECOVERY DEPARTMENT BENGALURU, DIVISION NO.3 CHURCH STREET, 2ND FLOOR, MSR WEST PARK BENGALURU - 560 001 REPRESENTED BY ITS AUTHORIZED OFFICER UNDER THE SARFAESI ACT 2. NECHUPADAM CONSTRUCTIONS PRIVATE LTD A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 CIN U45202KA2004PTC034528 HAVING REGISTERED AT OFFICE NO.107, DAFFODIL APARTMENTS, GARDEN ESTATE, JAKKUR PLANTATIONS YELAHANKA, BENGALURU NORTH BENGALURU - 560 064 REPRESENTED BY ITS DIRECTORS OFFICE ALSO AT V/451/C ST. PETERES COLLEGE TRUST BUILDING CHURCH ROAD, KOLENCHERY ERNAKULAM DISTRICT KERALA - 682 311
Legal Reasoning
3. MS. BEENA SHAJU W/O SHAJU K A AGED ABOUT 61 YEARS, - 3 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR 4. MR. K A SHAJU S/O AVARACHAN AGED ABOUT 62 YEARS 5. MS. MARIAMMA PAUL W/O PAUL AGED ABOUT 61 YEARS 6. MS. SAIRA GEORGE D/O SHAJU K A AGED ABOUT 39 YEARS ALL 3 TO 6 ARE RESIDING AT NECHUPDAM HOUSE, KAPAYIRUPPU PO, KOLENCHERY KERALA - 682 311 (BY SRI. JEEVAN KUMAR B S., ADVOCATE FOR R1; R3 - SERVED) … RESPONDENTS *** THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO i) QUASH ALL THE PROCEEDINGS INITIATED UNDER SARFAESI ACT 2002, BY THE R1 AGAINST THE SCHEDULE PROPERTY VIDE ANNEXURE-A BEARING NO.PZV/KLY/SAR-543/2021, DATED 30.09.2021 AND VIDE ANNEXURE-B, EKML/LPM/KLY/SAR/4028/13(4)/2022, DATED 21.09.2022 AND ETC. THIS PETITION COMING ON FOR FRESH MATTERS LIST THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S SUNIL DUTT YADAV - 4 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR ORAL ORDER Petitioners have assailed the proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act'), wherein the proceedings were taken against the petitioners. Petitioners have also sought to set aside order dated 29.09.2023 passed in Crl. Misc. No. 5441/2023 by the Additional Chief Metropolitan Magistrate, Bangalore, as per Annexure-C. Various other reliefs have also been sought for. 2. The petitioners have raised various contentions including that the property of the petitioners is not a subject matter of mortgage. 3. Learned counsel appearing for the respondent - Bank would contend that the property of the petitioners finds a mention in the register of equitable mortgage and that all contentions involve factual adjudication and the substantive remedy is under Section 17 of the SARFAESI - 5 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR Act. It is further pointed out that the validity of the order of the Chief Metropolitan Magistrate is also an aspect that is to be adjudicated before the Debts Recovery Tribunal. 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 petitioners to seek for substantive remedy before the Debts 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 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 - 6 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR 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 Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. - 7 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR 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." 5. It is further noticed that the Apex Court in the case of Phoenix Arc Private Limited v. Vishwa Bharathi Vidya Mandir - 2022 Live Law SC 45 has also reiterated the settled position that the borrower is required - 8 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR to approach the Debts Recovery Tribunal challenging any action by the bank. 6. In light of the observations made by the Apex Court, it can be noticed that several factual contentions raised by the petitioners are the matters that cannot be adjudicated in the present proceedings. 7. Accordingly, the petition is disposed off relegating the petitioners to avail of the substantive remedy as regards the impugned proceedings. All contentions of both sides are kept open. The interim order passed in the present proceedings will continue to be in operation for a period of four 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 - 9 - NC: 2025:KHC:19931 WP No. 32708 of 2024 HC-KAR approach are to look at the matter afresh uninfluenced by the observations made herein. 9. In light of the above, the petition is disposed off. The registry is directed to return the original / certified copies, if any after retaining the Xerox copies for reference. VP SD/- (S SUNIL DUTT YADAV) JUDGE