The court ruled that statutory remedies under the SARFAESI Act must be exhausted before seeking relief under Article 226 of the Constitution, ensuring that judicial discretion is exercised cautiously in alternative remedy scenarios.

ORDER :

M.R. Pathak, J.

1. Heard Mr. S. P. Roy, learned counsel for the petitioners and Mr. M. Sharma, learned Standing Counsel, Bank of Baroda, for the respondents.

2. Petitioners have filed this writ petition on 22.11.2023 praying to set aside and quash the Possession Notice dated 08.11.2023, issued by the respondent No.2, Chief Manager & Authorised Officer, Bank of Baroda, Guwahati Main Branch, M.S. Road, Fancy Bazar, Guwahati, Kamrup (Metro) Assam (Annexure-12 to this writ petition), issued in exercise of the power under Section 13 (4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, in short) read with Rule 8 of the Security Interest (Enforcement) Rules 2002 (2002 Rules).

3. It is contended by the petitioners that -- without issuing any prior Notice under Section 13 (2) of the SARFAESI Act, without furnishing them proper statement of account with relevant rate of interest, the statement of account that was furnished to them includes amount given to some other borrowers, namely M/S. M. B. Construction and that the statement of account furnished by the respondent Bank contained the amount and other financial benefits which the petitioners did not even borrowed and/or availed from the said Bank. Petitioners stated that the authorities in the respondent Bank issued the said Possession Notice dated 08.11.2023 in violation of the provisions of the SARFAESI Act, 2002 as well the Security Interest (Enforcement) Rules 2002.

4. It is seen that on his approach on 23.05.2018, the respondents in the Bank of Baroda, Main Branch, Guwahati vide communication No. BOB/GAUHATI/ ADV/2018-19 dated 25.05.2018 sanctioned an Overdraft Facility to the petitioner No.1, with the limit of Rs. 70,00,000/-, with certain specific terms and conditions and for the said purpose, the petitioner Nos. 2 and 3 mortgaged their land and further, the petitioner Nos. 2, 3 and 4 also gave their personal guarantee, where the petitioner Nos. 1, 2 and 3 are the sons of the petitioner No. 4.

5. Mr. M. Sharma learned counsel for the respondents stated that due to failure on the part of the Borrower, i.e., petitioner No. 1 to repay the overdrawn amounts in due time to the respondent Bank, his account became Non Performing Asset (NPA). Mr. M. Sharma stated that, therefore, the respondent Bank on 09.08.2023 issued Notice under Section 13 (2) of the SARFAESI Act to the said Borrower as well as to his concerned Guarantors, i.e., petitioner No. 1 and petitioner Nos. 2, 3 and 4, respectively, for realization of Rs. 58,04,467.59 as total amount claimed as on 07.07.2023 + (plus) interest and other charges thereon for the period from 01.01.2023 to 07.07.2023 requesting them to repay the said amount within sixty days.

6. Mr. Sharma learned counsel for the respondents also submitted that for realization of said amount of Rs. 58.04,467.59 and interest thereon from the petitioners, the respondent Bank on 31.07.2023 filed an application before the Debts Recovery Tribunal at Guwahati, being O.A. No. 518/2023 against the present petitioners.

7. Section 17 of the SARFAESI Act provides for right to Appeal that includes the action taken under Section 13 (4) of the SARFAESI Act. It is settled that -- the expression "any person" used in Section 17 (1) is of wide import and it takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Sect