The tribunal has jurisdiction to decide auction sale disputes under the SARFAESI Act, and the High Court should insist on exhausting statutory remedies before entertaining a writ petition.

JUDGMENT

Hiranmay Bhattacharyya, J. - The writ petitioner claims to be a lessee of an immovable property which was put up for auction sale in terms of the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "the SARFAESI Act") and the Security Interest (Enforcement) Rules, 2002 (for short "the 2002 rules"). The petitioner claims that he contacted an official of the Bank as the website was not functional. The said official assured him that a new date for such auction will be fixed. The writ petitioner claims that he could not participate in such auction as the website was not functional. The writ petitioner alleges that the respondent Bank has proceeded to finalise such auction by disregarding the assurances given to the writ petitioner. The writ petitioner says that the Bank in collusion with the participants finalised the auction sale. The writ petitioner filed the instant writ petition praying for a mandamus directing the respondents to set aside, cancel and withdraw the e-auction sale.

2. Mr. Banerjee, learned Advocate for the petitioner, has contended that the respondent Bank acted illegally and arbitrary by holding such auction when the other intending purchasers including the petitioner could not participate due to unworkable website. According to Mr. Banerjee, collusion between the Bank and the highest bidder is apparent as the property is sought to be transferred at an abnormally low price. Mr. Banerjee further contended that the writ petitioner has only challenged the manner in which such auction was conducted but not the measures taken by the secured creditor under Sub-section 4 of Section 13 of the SARFAESI Act. He contended that neither the SARFAESI Act nor the 2002 rules framed thereunder has provided the manner in which auction is to be conducted. Thus, according to Mr. Banerjee, the Debts Recovery Tribunal (for short "the Tribunal") do not have the jurisdiction to decide the instant dispute. According to Mr. Banerjee before a tribunal can be held to have jurisdiction to decide a particular matter it must not only have the jurisciction to try and adjudicate the dispute brought before it but must also have the authority to pass the order sought for. In support of such contention, Mr. Banerjee placed reliance upon a judgment of the Hon'ble Supreme court of India in the case of Official Trustee, West Bengal and ors. vs. Sachindra Nath Chatterjee and Anr., (1969) AIR SC 823 . Mr. Banerjee further contended that as the writ petitioner was deprived of his right to participate in the e-auction, he filed the instant writ petition.

3. Mr. Banerjee contended that the object of auction sale is maximum participation by intending purchasers and to fetch the best possible market price. Mr. Banerjee contended that any irregularity in conducting the auction sale can be challenged under Article 226 of the Constitution of India and in support of such contention he relied upon the following judgments of the Hon'ble Supreme Court of India in the case of (i) Gajraj Jain vs. State of Bihar and Ors., (2004) 7 SCC 151 , (ii) S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Ors., (2004) 7 SCC 166 and (iii) Karnataka State Industrial Investment and Development Corporation Limited vs. S.K.K. Kulkarni and Ors., (2009) 2 SCC 236.

4. Mr. Guha, learned Advocate for the respondent has seriously disputed the contentions of Mr. Banerjee. He contended that Subsection 4 of Section 13 of the SARFAESI Act empowers the secured creditor to take recourse to sale of an immovable property i.e. the secured asset for recovery of the secured debt. He further contended that Section 17 of the SARFAESI Act provides that if any person including the borrower is aggrieved against any of the measures taken by the secured creditor, such aggrieved person has to approach the Tribunal. According to him, the instant writ petition is not maintainable as an alternative efficacious reme