The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21446 of 2025 M/s Bharat Trading Co., Cuttack ….. Petitioner Mr. Rajesh Ranjan Sahoo, Advocate -versus- 1. Kotak Mahindra Bank, Link Road Branch, Cuttack 2. The Autorised Officer -cum- Chief Manager, Kotak Mahindra Bank Ltd. Bhubaneswar ..... Opp. Parties Order No. 01. Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: RAJESH KUMAR BADHEI Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Sep-2025 19:18:40 CORAM:
Decision
HON’BLE MR. JUSTICE S.K. SAHOO HON’BLE MR. JUSTICE S. S. MISHRA ORDER 08.09.2025 This matter is taken up through Hybrid arrangement (video conferencing/physical mode). This writ petition has been filed by the petitioner, M/s Bharat Trading Co., Cuttack represented through its proprietor, Smt. Koushalya Devi Modi, who is aged about 79 years, for a direction to the opp. parties, Kotak Mahindra Bank, to consider the prayer of the petitioner for one time settlement (OTS). It appears that the Bank has already issued notice under section 13(4) of the SARFAESI Act and thereafter, the Bank has approached the Collector and District Magistrate, Cuttack under section 14 of the SARFAESI Act and accordingly, the Misc. case No.53 of 2025 has been Page 1 of 6 instituted and notice has been issued to the petitioner and the case was posted on 16.07.2025, which would evident from Annexure-5. In case of United Bank of India -Vrs.- Satyawati Tondon and others reported in (2010) 8 Supreme Court Cases 110, in the case of Balkrishna Rama Tarle (dead through legal representatives) and another - Vrs.- Phoenix Arc Private Limited and others reported in (2023) 1 Supreme Court Cases 662 so also in the case of CELIR LLP -Vrs.- Bafna Motors (Mumbai) Private Limited and others reported in (2024) 2 Supreme Court Cases 1, it has been held that the High Court should not entertain the writ jurisdiction under Article 226 of the Constitution when alternative remedy is available under section 17 of the SARFAESI Act. In the case of Satyawati Tondon (supra), the Hon’ble Supreme Court has held as follows: “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 Page 2 of 6 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 evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. 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 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.” Page 3 of 6 In the case of Balkrishna Rama Tarle (supra), the Hon’ble Supreme Court has held as follows: “18. Thus, the powers exercisable by CMM/DM under section 14 of the SARFAESI Act are ministerial steps and section 14 does not involve any adjudicatory process qua points raised by the borrowers against the secured creditor taking possession of the secured assets. In that view of the matter once all the requirements under section 14 of the SARFAESI Act are complied with/satisfied by the secured creditor, it is the duty cast upon the CMM/DM to assist the secured creditor in obtaining the possession as well as the documents related to the secured assets even with the help of any officer subordinate to him and/or with the help of an advocate appointed as Advocate Commissioner. At that stage, the CMM/DM is not required to adjudicate the dispute between the borrower and the secured creditor and/or between any other third party and the secured creditor with respect to the secured assets and the aggrieved party to be relegated to raise objections in the proceedings under section 17 of the SARFAESI Act, before the Debts Recovery Tribunal.” In the case of Bafna Motors (supra), the Hon’ble Supreme Court has held as follows: “110.3. In accordance with the unamended Section 13(8) of the SARFAESI Act, the right of Page 4 of 6 the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. In other words, the borrower’s right of redemption did not stand terminated on the date of the auction-sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction-purchaser, by registration of the sale certificate and delivery of possession of the secured asset. However, the amended provisions of Section 13(8) of the SARFAESI Act, make it clear that the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the 2002 Rules. In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the 2002 Rules and not till the completion of the sale or transfer of the secured asset in favour of the auction-purchaser.” After hearing learned counsel for the petitioner and taking into account the ratio laid down in the aforesaid cases, and since the alternative remedy is available to the petitioner, we are not inclined to entertain the writ petition. However, it is open to the petitioner to approach the opp. parties-Bank with a prayer for One Time Settlement in accordance with law. If such an approach is made, the same shall be considered in accordance with law. It is made Page 5 of 6 clear that we have not expressed any opinion on the merits of the case. Accordingly, the writ petition stands disposed of. Judge ( S.K. Sahoo) (S.S. Mishra) Judge I.A. No.12788 of 2025 02. In view of the order passed today in W.P.(C) No.21446 of 2025, the I.A. also stand disposed of. Issue urgent certified copy as per Rules. ( S.K. Sahoo) Judge (S.S. Mishra) Judge Rajesh Page 6 of 6