Orissa High Court
Avinash Kumar Singh vs Authorized Officer on 1 October, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23426 of 2024
1. Avinash Kumar Singh
2. Rosalin Benjamin ..... Petitioners
Mr. A. Pattanaik,
Advocate
-versus-
Authorized Officer,
Canara Bank, Cuttack
ARM Branch, Mangala
..... Opp. Party
Bag, Cuttack
Mr. Bibekananda Udgata,
Advocate
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 01.10.2024
01. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Mr. Bibekananda Udgata, learned counsel has filed his power on behalf of the opp. party in Court today, which is taken on record.
Heard learned counsel for the petitioner and learned counsel for the opp. party-Bank.
The petitioners have filed this writ petition with a prayer to quash the possession notice under Annexure-4 Page 1 of 3 as the petitioners are no way connected with the loan in question from opp. party-Bank in respect to their residential Flat No- 206, 2nd Floor, Block A, measuring super built up Area of 1755 Sq. Ft. of M/s. Aakar Infra Design Pvt. Ltd. (previously known as Akruti Lifestyle), Kissam:-Gharabari in Mouza-Kalarahanga, P.S.- Infosys, Bhubaneswar, Dist-Khurda.
Section 17 of the SARFAESI Act enables a person aggrieved by any of the measures provided under section 13(4) taken by the secured creditor to file an application before the D.R.T. Therefore, the petitioner may resort to such provision and approach the D.R.T. seeking to invoke such provision, if needed.
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 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 Page 2 of 3 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 petitioners, we are not inclined to entertain this writ petition. However, we grant liberty to the petitioners to approach the DRT by filing an application. If such an application 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.
Pending applications, if any, shall stand disposed of. Issue urgent certified copy as per Rules.
( S.K. Sahoo) Judge (Chittaranjan Dash) Judge sipun Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Page 3 of 3 Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Oct-2024 15:10:27