The importance of exhausting the statutory remedy of appeal available under the relevant statute before approaching the High Court under Article 226 of the Constitution.

JUDGMENT :

R.M. CHHAYA, J.

1. Heard Mr. M.A. Sheikh, learned counsel for the petitioners. Also heard Mr. A. Ganguly, learned counsel for the respondent bank.

2. By way of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following relief:

“Under the above facts and circumstances, it is therefore, prayed that your Lordships would be pleased to admit this petition, call for the records, issue a rule, calling upon the respondents to show cause as to why a writ in the nature of Mandamus shall not be issued to set aside the impugned notice dated 10/11/2022 and impugned proclamation of sale notice dated 17/11/2022 (Annexure No. 3 and 4 respectively) issued by the respondent. And on perusal of records and reply to show cause if any and after hearing the parties would be pleased to make the rule absolute by setting aside the impugned notice dated 10/11/2022 and impugned proclamation of sale notice dated 17/11/2022 (Annexure No. 3 and 4 respectively). And or pass any other order or orders as Your Lordship may deem fit and proper in the interest of justice.

Further it is prayed that pending disposal of this writ petition the operation of impugned notice dated 10/11/2022 and impugned proclamation of sale notice dated 17/11/2022 (Annexure No. 3 and 4 respectively) and e-auction of the secured assets fixed on 16/12/2022 may be stayed ex-parte.”

3. Considering the fact that what is challenged before this Court is the proceedings under Section 13 of the SARFAESI Act, 2002 against which the present petition is filed, the petitioner has an efficacious remedy by way of filing an appeal as provided under Section 17 of the SARFAESI Act before the DRT. Hence no extra-ordinary circumstances arise in this petition which warrant interference of this Court by exercising its jurisdiction under Article 226 of the Constitution of India without exhausting the alternative remedy.

4. We are fortified in our view by the latest judgment of the Hon’ble Apex Court in the case of Varimadugu Obi Reddy vs. B. Sreenivasulu and Others in Civil Appeal No. 8470 of 2022 decided on 16.11.2022 wherein the Hon’ble Apex Court has observed as thus:

“32. The order of the Tribunal dated 1st August, 2019 was an appealable order under Section 18 of the SARFAESI Act, 2002 and in the ordinary course of business, the borrowers/person aggrieved was supposed to avail the statutory remedy of appeal which the law provides under Section 18 of the SARFAESI Act, 2002 in the absence of efficacious alternative remedy being availed, there was no reasonable justification tendered by the respondent borrowers in approaching the High Court and filing writ application assailing order of the Tribunal dated 1st August, 2019 under its jurisdiction under Article 226 of the Constitution without exhausting the statutory right of appeal available at its command.

33. This Court in the judgment in United Bank of India vs. Satyawati Tondon and Others, (2010) 8 SCC 110, was concerned with the argument of alternative remedy provided under the SARFAESI Act, 2002 and dealing with the argument of alternative remedy, this Court had observed that where an effective remedy is available to an aggrieved person, the High Court ordinarily must insist that before availing the remedy under Article 226 of the Constitution, the alternative remedy available under the relevant statute must be exhausted. Paras 43, 44 and 45 of the said judgment are relevant for the purpose and are extracted below:

“43. Unfortunately, the High Court overlooked the 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. In our view, while dealing with the petitions involving challenge to the action taken for