Pradipta Ranjan Biswal v. The Authorized Officer, Canara Bank, Circle Office, Bhubaneswar & Ors.

CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. ORDER 02.01.2025

This matter taken up through Hybrid arrangement (video conferencing/physical mode).

Heard learned counsel for the Parties.

This Writ Petition has been filed by the Petitioner with the following prayer:-

In the fact and circumstances, it is humbly prayed that this Hon'ble Court may graciously be pleased to: (i) Admit the writ application. (ii) Issue Rule NISI calling upon the Opposite Parties to show cause as to why the sale certificate issued by the Opposite Party No. l and 2 under Annexure-5 shall not be quashed being illegal, arbitrary and violative of principles of natural justice as well as done in fraudulent manner by undervaluation of the property with collusion. (iii) To declare the action of the Opp. Party No.l and 2 in conducting the proceedings under SARFEASI Act and e auction as illegal, mala fide, fraud, and violative of principles of natural justice as well as with collusion; or iv) To direct the Opp. Party No.l and 2 Bank authorities to supply the original copies of the notices initiated SARFEASI proceedings to the petitioner which has prejudcied the petitioner of availing the remedy of appeal. v) To declare the action of the Opp. Parties in not supplying the original copies of the notices initiated under the SARFEASI proceedings to the petitioner and without any proof of such notice which has prejudcied the petitioner of availing the remedy of appeal under Section 17 of the Act s illegal, arbitrary and untenable as well as violative of the principles of natural justice; iv) If the Opp. Parties fails to show cause or show insufficient cause makes rules absolute. v) And may pass any other order/orders as deemed fit and proper in the present circumstances; And for this act of kindness the petitioner shall as in duty bound every pray.

The Hon’ble Supreme Court in the case of Celir LLP -Vrs.- Bafna Motors (Mumbai) (P) Ltd. reported in (2024) 2 Supreme Court Cases 1 held as follows:-

110.3. In accordance with the unamended Section 13(8) of the SARFAESI Act, the right of 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 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.

Recently, the Hon’ble Supreme Court in the case of M/s. South Indian Bank Ltd. & Ors. -Vrs.- Naveen Mathew Philip & Anr. reported in 2023 LiveLaw (SC) 320 has deprecated the interference of the High Courts in matters pertaining to the SARFAESI Act, where efficacious alternative remedy has been prescribed in the statute itself. The Hon’ble Court went on to hold as follows:

16. Approaching the High Court for the consideration of an offer by the borrower is also frowned upon by this Court. A writ of mandamus is a prerogative writ. In the absence of any legal right, the Court cannot exercise power. More circumspection is required in a financial transaction, particularly when one of the parties would not come within the purview of Article 12 of the Constitution of India. When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant the non-compliance of cannot avoid approaching the Tribunal which requires the prescription of fees and use constitutional remedy as an alternative.

In view of the settled position of law as held hereinabove so also the case of Kanaiyalal Lalchand Sachdev & Ors. -Vrs.- State of Maharashtra & Ors. reported in (2011) 2 Supreme Court Cases 782, since alternative and efficacious remedy is available to the Petitioner, we are not inclined to entertain this writ petition. However, we grant liberty to the Petitioner to approach the DRT for redressal of grievance. If such an approach is made, the same shall be considered in accordance with law. In case of delay, appropriate application is to be filed. It is made clear that we have not expressed any opinion on the merits of the case.

Issue urgent certified copy as per Rules. Judge (S.K. Sahoo) Judge (Chittaranjan Dash) AKPradhan/ Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 06-Jan-2025 10:40:40