Availability of alternate remedy under SARFAESI Act and the limited scope of writ jurisdiction in matters related to SARFAESI Act.

JUDGMENT

Purushaindra Kumar Kaurav, J. (Oral)

1. The present petition has been filed under Article 226 and 227 of the Constitution of India on behalf of the petitioner assailing the order dated 08.12.2022, passed by the learned CMM East District, Karkardooma Court, New Delhi in SARFAESI Petition bearing Misc. Crl. No. 202/2022 appointing Receiver to take over the possession of the property of the petitioner i.e. B-32, Khasra No. 831, Gali No. 1, Kumaon Square, West Vinod Nagar, Village Mandawali Fazalpur, Shahadara, New Delhi (hereinafter referred as `disputed property').

2. Learned counsel appearing on behalf of the petitioner submits that the petitioner is neither a borrower nor a guarantor. He submits that the notice was affixed on the premises of the petitioner, to which the petitioner has submitted a detailed reply on 17.02.2022 stating various averments therein and clarifying the fact that the property in question has no concern with the loan, if any, taken by the borrower. It is also stated therein that an illegal and arbitrary notice of possession was issued to the petitioner, who had never taken any loan. The petitioner, therefore, requested the respondent No. 1 to withdraw the illegal notice dated 09.02.2022. It was further stated that if there was any other explanation/clarification required from the ends of the petitioner, the same would be rendered accordingly.

3. Learned counsel appearing on behalf of the respondent, however, submits that the instant petition is not maintainable and the petitioner has efficacious alternate remedy under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). He, in addition submits that the respondent No. 1 is a Non-Banking Financial Institution (hereinafter referred as `NBFC') and is purely discharging the contractual obligation entered into between the respondents and the borrower. If any person who is aggrieved by any measure taken by the financial institution, the appropriate remedy is not to approach the High Court but to avail the alternate mechanism in accordance with the provisions of SARFAESI Act.

4. Learned counsel for the petitioner in rejoinder has placed reliance on the decision of the Hon'ble Supreme Court in the case of Radha Krishnan v. State of Himachal Pradesh and Ors., (2021) 6 SCC 771 and another decision in the case of Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla and Others, 2022 SCC OnLine SC 1653.

5. I have heard learned counsel appearing for the parties and perused the record.

6. The Hon'ble Supreme Court in the case of Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 in paragraph No. 50 thereto has held as under:

"50. It has also been submitted that an appeal is entertainable before the Debt Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub- section (4) of Section 13, it is submitted by Mr. Salve one of the counsel for respondents that there would be no bar to approach the civil court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which