The High Court should insist on exhausting remedies available under the relevant statute before availing remedy under Article 226, and the writ jurisdiction should rarely be exercised, particularly in the context of proceedings under the SARFAESI Act.

ORDER

The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].

CM APPL. 40718/2021 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

W.P.(C) 12931/2021 & CM APPL. 40717/2021 (for stay)

1. Issue notice. Mr. Rupak Srivastava, learned counsel, accepts notice on behalf of respondent-Union Bank of India ["the Bank"].

2. The petitioners assail orders dated 28.09.2021 and 29.09.2021 passed by the learned Chief Metropolitan Magistrate ["CMM"] on the Bank's application under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFEASI Act"]. By the said orders, the learned CMM appointed a Receiver to take possession of the properties of the petitioners. The order dated 28.09.2021 covers six properties, including five shops and a godown, which are enumerated in paragraph 8 of the order. The order dated 29.09.2021 is in respect of a property bearing No. 83, A Block, Pocket KU, Pitampura, Delhi-110088.

3. The properties were, admittedly, given as security for cash credit facilities taken by the petitioners from the Bank. The petitioners having failed to repay, the Bank commenced proceedings under the SARFAESI Act. One of the Receivers appointed by the learned CMM has given a notice dated 08.11.2021, purporting to take possession of one of the shops of the petitioners on 25.11.2021.

4. The petitioners have challenged the learned CMM's order dated 28.09.2021 by way of an interlocutory application filed in SA No. 124/2021, which remains pending before the Debts Recovery Tribunal-Ill ["DRT"], Delhi. However, the said application has not been taken up for hearing as the DRTs in Delhi are, at present, non-functional for want of Presiding Officers. It is in these circumstances that the petitioners have been compelled to approach this Court under Article 226 of the Constitution.

5. As all the three DRTs in Delhi are without Presiding Officers, several petitions have been filed in this Court seeking similar reliefs. Although some petitions under Article 226 were entertained, it was thereafter brought to the notice of the Court that the Debts Recovery Appellate Tribunal ["DRAT"] is empowered to transfer the applications/petitions to another functional DRT within the jurisdiction of the DRAT on the ground of urgency, in exercise of the powers conferred by Section 17(7) of the SARFAESI Act read with Section 17A(2) of the Recovery of Debts and Bankruptcy Act, 1993 ["RDB Act"]. Several orders were passed by the DRAT, Delhi transferring proceedings from the DRTs in Delhi to the DRT, Jaipur, which is the only functional DRT within the jurisdiction of the DRAT, Delhi. This Court also disposed of petitions under Article 226 with liberty to the petitioners to approach the DRAT, Delhi for such relief.

6. However, the aforesaid course has now been rendered impossible by virtue of the fact that the learned Chairperson of the DRAT, Delhi has also demitted office on 30.10.2021 in terms of a notification dated 29.10.2021, issued by the Department of Financial Services, Ministry of Finance, Government of India.

7. The question to be considered in these circumstances is whether it would be appropriate to entertain the present proceedings on merits, or for this Court to exercise the power under Section 17(7) of the SARFAESI Act read with Section 17A(2) of the RDB Act, which read as follows:-

Section 17(7) of the SARFAESI Act -

"17-Right to Appeal-

(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder. "

Section 17A(2) of the RDB Act -

"17A -Power of Chairperson of Appellate Tribunal

xxxx xxxx xxxx

(2) The Chairperson of an Appellate Tribunal having jurisdiction over the Tribunals may, on the application of