IMPORTANT POINTS
(1) It is settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions.
(2) The provisions of the Indian Registration Act are with regard to the registration of the document. However, the transaction of a loan or advance is a separate and individual transaction and the assets offered as and by way of surety, which is mortgaged, would be a secured asset.

RAJESH H. SHUKLA, J.

1. As learned advocates appearing for the respective parties have requested to take the matter as finally heard, same has been heard finally.

2. The present petition is filed by the petitioner under Articles 14, 226, 227 & 300A of the Constitution of India as well as under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act) for the prayers as prayed for inter alia that appropriate writ, order or direction may be issued to quash and set aside the order of the District Magistrate, Surat dated 29.05.2015 and also to quash and set aside the subsequent action taken by the Reserved Bank of India. It is also prayed that the respondents may be restrained from taking any further measure under the SARFAESI Act in respect of the acquired assets on the grounds stated in the memo of petition. By way of amendment, it was also prayed for further interim relief at Paragraph Nos.13A-1 & 13A-2 that the respondent-bank may be restrained from auctioning the subject property as per public notice at Annexure-L may be set aside.

3. Heard learned advocate, Shri Sunit Shah appearing with learned advocate, Shri N.V. Gandhi, learned advocate, Shri Dharmesh Shah for the respondent nos.1 and 2, learned AGP Shri Banaji for the respondent no.3 and learned advocate, Shri Kinariwala appearing with learned advocate, Shri Nikunj Balar for the respondent no.4-original borrower.

4. Learned advocate, Shri Sunit Shah appearing with learned advocate, Shri N.V. Gandhi referred to the papers at length and submitted that the public auction of the premises in question, which are shops, are sought to be held by the respondent-bank for the recovery of the amount, which is a home loan in purported exercise of powers under the SARFAESI Act. Learned advocate, Shri Sunit Shah submitted that the petitioner is neither borrower nor guarantor and he has purchase the property in question (shops) by registered agreement to sale and he is put in possession. He submitted that as the mortgage-deed is not registered either by the mortgagee or the mortgager bank, same is not valid and, therefore, assets cannot be said to be acquired.

5. Learned advocate, Shri Sunit Shah, therefore, submitted that the transaction between the respondent no.4-original borrower and the bank is not bonafide transaction and the petitioner is sought to be duped. He, therefore, tried to formulate the submission referring to the papers that the loan is a home loan, which is advanced for the property in question (shops) and not the home. He submitted that there are no installments paid and cheques, which have been given, are dishonoured and still the bank has not taken any steps by filing complaint under Section 138 of the Negotiable Instrument Act. He further submitted that false information has been given that the respondent no.4-original borrower is in possession. He submitted that though the possession is with the petitioner in purported exercise of powers under Section 14 of the SARFAESI Act, recovery is sought to be made by way of sell of the property. Learned advocate, Shri Shah submitted that the order passed by the Magistrate is therefore without any application of mind and is not a reasoned order and no opportunity has been provided to the petitioner, which has led to filing of the present petition.

6. Learned advocate, Shri Sunit Shah submitted that in view of the provision of SARFAESI Act, suit is barred, however, the petition under Article 226 of the Constitution of India would be maintainable before the High Court and, therefore, the present petition is filed. In support of this submission, he has referred to and relied upon the judgment of the Hon’ble Apex Court in case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Ltd. & Ors., reported in (2014) 6 SCC 1 and pointedly referred to the observations made in Paragraph Nos.29 and 32. Lea