Orissa High Court
Rama Krushna Jena And vs Collector And District on 20 January, 2025
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.1439 of 2025
Rama Krushna Jena and ..... Petitioners
another
Mr. J. Sahoo,
Advocate
-versus-
1. Collector and District
Magistrate, Ganjam,
Chatrapur
2. M/s. Varthana
Finance Pvt. Ltd. ..... Opp. Parties
Mr. Sarat Pradhan,
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 20.01.2025
01. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Heard.
The petitioners have filed this writ petition for quashing the order dated 07.12.2024 passed by the opp. party no.1 under Annexure-1 by concurrently holding the same as bad, illegal, arbitrary and not sustainable and/or maintainable in the eye of law and further directing the opposite parties not to take Page 1 of 4 possession of the properties mortgaged against the loan account of the petitioners.
As it appears that since the petitioners who were the borrowers, availed loan from the opp. party no.2 but did not pay the dues in time for which proceeding under SARFAESI Act was instituted on the application filed by the Authorized Officer, M/s. Varthana Finance Private Limited formerly M/s- Thirumem Finance Private Ltd. (Varthana), IRC Bhubaneswar i.e., opposite party no.3 and now the order has been passed by the learned District Magistrate, Ganjam, opposite party no.1 in a proceeding under section 14 of the SARFAESI Act on 07.12.2024.
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 the said power. More circumspection is required in a financial transaction, particularly when one of the parties would not Page 2 of 4 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 Hemraj Ratnakar Salian -Vrs.- HDFC Bank Ltd. & Ors. Reported in (2021) 20 Supreme Court Cases 395 and 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 by filing an appeal. 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.
( S.K. Sahoo) Judge (Chittaranjan Dash) Judge Page 3 of 4 I.A. No.467 of 2025
02. In view of the order passed today in W.P.(C) No.1439 of 2025, the I.A. stands disposed of.
Issue urgent certified copy as per Rules.
( S.K. Sahoo) Judge (Chittaranjan Dash) Judge Pravakar Signature Not Verified Digitally Signed Signed by: PRAVAKAR NAYAK Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Jan-2025 21:09:16 Page 4 of 4