The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31719 of 2025 Jajati Keshari Jena ….. Petitioner Authorised Officer, State Bank of India, Stressed Assets Recovery Branch, Bhubaneswar Mr. Abhijeet Patnaik, Advocate -versus- .... Opp. Parties Mr. Subrat Mishra, Advocate (O.P.No.1) Mr. J. Nayak, AGA (O.P. Nos.2 to 4), Mr. Anjan Kumar Biswal, Advocate (O.P. No.5) CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE SIBO SANKAR MISHRA Order No. ORDER 17.11.2025 02. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Legal Reasoning
35. This Court in the judgment in United Bank of India v. Satyawati Tondon, was concerned with the argument of alternative remedy provided under the SARFAESI Act, 2002 and dealing with the argument of alternative remedy, this Court had observed that where an effective remedy is available to an aggrieved person, the High Court ordinarily must insist that before availing the remedy under Article Page 4 of 8 226 of the Constitution, the alternative remedy available under the relevant statute must be exhausted. Paras 43, 44 and 45 of the said judgment are relevant for the purpose and are extracted below : (SCC p. 123) “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 Page 5 of 8 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. 45. It is true that the rule of exhaustion of alternative remedy is a rule of Page 6 of 8 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.” 36. In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre-deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under Page 7 of 8 the law. This circuitous route appears to have been adopted to avoid the condition of pre- deposit contemplated under 2nd proviso to Section 18 of the 2002 Act.” So far as the 2nd prayer made in this writ petition is concerned to quash the e-auction sale notice dated 09.06.2025, the same prayer has been made by the petitioner in S.A. No.160 of 2025 which is subjudiced before the learned Debts Recovery Tribunal, Cuttack. Therefore, we are not inclined to entertain this writ petition.
Arguments
Mr. Subrat Mishra, learned counsel and his associates file Vakalatanama on behalf of the opposite party no.1 in Court today, which is taken on record. Heard learned counsel for the petitioner, learned counsel for the opp. parties-Bank. This writ petition has been filed by the petitioner- Page 1 of 8 Jajati Keshari Jena challenging the order dated 30.10.2025 passed by the learned DRT, Cuttack in S.A. No.160 of 2025 under Annexure-1. It appears from the impugned order dated 30.10.2025 that while adjudicating the interim application which was filed for a direction to the Bank not to take any further action in respect of the schedule property pursuant to the e-auction sale notice, the learned Tribunal has been pleased to hold that:- “From the perusal of the record it is seen that the property has already been sold and sale certificate has also been issued in favour of the auction purchaser. Applicant has neither impleaded the auction purchaser till date though the applicant has already received the details of the auction purchaser nor amended the SA till date. It is also a fact that in the meantime, Respondent Bank has issued sale certificate. Though the applicant has prayed for stay of taking over physical possession. But the applicant has not pleaded anything about the physical possession of the schedule property in his petition nor amended the SA accordingly bring those facts on record. Hence no interim order can be passed at this stage as there is no pleading in the main SA. Page 2 of 8 From the order of the Hon’ble High Court dated 17/10/2025 passed in WPG No.29196/2025 it is seen that the Hon’ble High Court has asked the State to apprise the Court as to why possession of he purchased property has not yet been handed over to the petitioner even though the petitioner is the successful bidder and sale certificate has been issued in her favour and the direction of the Collector, Jajpur under Section 14 of the SARFAESI Act has also been passed. In view of the aforesaid facts and circumstances of the case and the discussion made above, this Tribunal is of the view that the applicant has failed to make out any case for grant of interim order. Accordingly I.A. No. 1349/2025 is hereby dismissed being devoid of any merit”. There is no dispute that against the impugned order dated 30.10.2025 passed by the learned D.R.T., Cuttack in SA No.160 of 2025, the appeal is maintainable under section 18 of the SARFAESI Act before the D.R.A.T. In the case of Varimadugu OBI Reddy –Vrs.- B. Sreenivasulu and others reported in (2023) 2 Supreme Court Cases 168, the Hon’ble Supreme Page 3 of 8 Court in paragraphs nos.34, 35 and 36 has held as follows:- “34. The order of the Tribunal dated 1-8-2019 was an appealable order under Section 18 of the SARFAESI Act, 2002 and in the ordinary course of business, the borrowers/person aggrieved was supposed to avail the statutory remedy of appeal which the law provides under Section 18 of the SARFAESI Act, 2002. In the absence of efficacious alternative remedy being availed, there was no reasonable justification tendered by the respondent borrowers in approaching the High Court and filing writ application assailing order of the Tribunal dated 1-8-2019 under its jurisdiction under Article 226 of the Constitution without exhausting the statutory right of appeal available at its command.
Decision
Accordingly, the writ petition stands disposed of. ( S.K. Sahoo) Judge ( S. S. Mishra) Judge Pravakar Signature Not Verified Digitally Signed Signed by: PRAVAKAR NAYAK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2025 17:10:00 Page 8 of 8