Orissa High Court
Maruti Traders vs Authorised Officer on 2 December, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.29878 of 2024
Maruti Traders, Cuttack .... Petitioner
Mr.Naresh Chandra Jena, Advocate
-versus-
1.Authorised Officer,
Indian Bank, Zonal Office,
KIIT Branch.
2. Branch Manager, Indian
Bank, Infocity Branch,
Bhubaneswar.
3. Mr. Ram Niranjan
Mohapatra. .... Opp. Parties
Mr.Tuna Sahu, Advocate
(for the Bank)
CORAM:
JUSTICE S.K. SAHOO
JUSTICE CHITTARANJAN DASH
ORDER
Order No. 02.12.2024 01. This matter is taken up through Hybrid
arrangement (video conferencing/physical mode).
This writ petition has been filed by the petitioner Maruti Traders, Cuttack challenging the notification dated 02.01.2024 and sale certificate dated 09.02.2024 issued by the Opp. parties nos. 1 and 2, wherein the Opp. parties nos. 1 and 2 stated to have taken Symbolic possession of the property of the petitioner and issued E-Auction/Sale Notice without issuing any notice to the petitioner moreover when negotiation for One Time Settlement (OTS) is going on Page 1 of 4 since long and the petitioner was asked to prepare the Bank Draft for the said purpose.
In the case of Celir LLP -Vrs.- Bafna Motors (Mumbai) (P) Ltd. reported in (2024) 2 Supreme Court Cases 1, it has been 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 till the date of publication of the notice Page 2 of 4 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.
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 the said 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 cannot avoid the non- compliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative."
In view of the settled position of law as held hereinabove so also in the case of Kanaiyalal Lalchand Sachdev & Ors. -Vrs.- State of Maharashtra & Ors. reported in (2011) 2 Page 3 of 4 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 file an appeal before the appropriate authority. If such an appeal is filed, the same shall be considered in accordance with law. It is made clear that we have not expressed any opinion on the merits of the case.
With this observation, the writ petition stands disposed of.
Issue urgent certified copy as per Rules.
( S.K. Sahoo)
Judge
(Chittaranjan Dash)
Pravakar Judge
Signature Not Verified
Digitally Signed
Signed by: PRAVAKAR NAYAK
Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Dec-2024 18:42:38 Page 4 of 4