IMPORTANT POINT
The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field

JUDGMENT :

A.M. BADAR, J.

1. This Original Petition under Article 226 and 227 of the Constitution of India has been filed by the Authorized Officer, Indian Bank with the following prayers:-

(a) Set aside Exhibit P6 order of the Debts Recovery Tribunal-II, Ernakulam and dismiss the SA and restore the sale conducted by the petitioner in favour of the 4th respondent.

(b) Declare that the SA was not maintainable before the Debts Recovery Tribunal since the same was beyond the period of limitation under Section 17 of the Securitization Act.

Respondent Nos. 1 and 2 are the guarantors whereas the 3rd respondent is the principal borrower. The 4th respondent is the auction purchaser.

2. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents.

3. At the outset, let us put on record the facts which would enable us to grasp the background of issues involved in the instant petition:-

(a) The 3rd respondent, M/s. Brubex Global, had availed a term loan of Rs. 7 lakhs on 03.05.2006 and open cash credit facility for Rs. 80 lakhs on 24.05.2008. Respondent Nos. 1 and 2 stood as guarantors for the loan facility availed by the 3rd respondent. Security interest came to be created in respect of immovable property comprised in Sy. Nos. 299/2/1, 299/3/1, 299/2/2, 299/3 in Block No. 20 of Panachikkadu Village of Kottayam Taluk owned by respondent Nos. 1 and 2.

(b) It is not in dispute that, on 06.11.2009, first demand notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for the sake of brevity hereinafter referred to as ‘the SARFAESI Act’) came to be issued by the secured creditor to the borrower as well as the guarantors for discharging of their liability in full to the secured creditor. Subsequently, Ext.P3 second demand notice under Section 13(2) of the SARFAESI Act (Record Page No. 33) came to be issued on 27.07.2010, thereby asking the borrower and the guarantors to discharge their full liability to the secured creditor within sixty days from the date of notice. By this notice, respondent Nos. 1 to 3 and others were directed to pay an amount due on the date amounting to Rs. 92,80,417.92 with interest till the date of payment, by giving a caution to them that on failure, the secured creditor shall exercise right of enforcement of security interest. This notice was not complied by the borrower or the guarantors. Accordingly, on 02.11.2010, constructive possession of the secured assets was taken by the creditor complying provisions under Section 13(4) of the SARFAESI Act. Thereafter, Ext.P4 notice of intended sale under Rules 6(2) and 8(6) of the Security Interest (Enforcement) Rules 2002 (hereinafter referred to as ‘the Rules’) came to be issued on 20.11.2020. Respondent Nos. 1 to 3 were informed by this notice that schedule properties shall be sold within thirty days from serving of the sale notice. It is reported that the date of sale was fixed on 28.12.2020.

(c) Feeling aggrieved by the notices under Section 13(2) of the SARFAESI Act dated 06.11.2009 (Record Page No. 29) and 27.07.2010 (Record Page No. 33) as well as notice of intended tender-cum-auction sale dated 20.11.2010 (Record page No. 35A), respondent Nos. 1 and 2 who are guarantors had chosen to file Ext.P1 writ petition as W.P. (C) No. 38409 of 2010 (Record Page No. 14) before this Court. It is apposite to reproduce the prayer clause in the said writ petition, which reads thus:-

“(i) To issue writ of mandamus directing the 01st respondent to constituted Central Registry as per Section 20 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 or in alternate declare that Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 applicable only in cases were secured assets are registered with Central Registry.

(ii) To issue writ of Mandamus directing the 01st respondent to constituted Ce