Point of law: High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act

JUDGMENT :

S. MANIKUMAR, J.

Instant appeal is filed being aggrieved by the judgment dated 15.10.2020 in W.P.(C) No. 12035 of 2020.

2. Facts leading to the writ appeal are that appellant is a private limited company incorporated under the Companies Act, 1968, by engineers and other professionals. In the year 2009, appellant approached the erstwhile State Bank of Travancore, Poojapura Branch, for expanding business. The Directors of appellant company mortgaged 5 items of property, out of which, 2 items are residential building. Those 5 items of property are treated as secured assets. Loan arrangement was a cash credit overdraft limit. The sanctioned limit of the loan was Rs.987 lakhs, including bank guarantee. The operating level of aggregate CCOD level was tentatively fixed as Rs.657 lakhs.

3. Thereafter, when the State Bank of Travancore was acquired by the State Bank of India, it was intimated by the respondent Bank that adhoc OD limit of Rs.4 lakhs sanctioned by Exhibit P2 would remain closed and Exhibit P5 notice was issued intimating that the loan account has already been declared as NPA and to clear the entire outstanding dues. The appellant company issued a reply, explaining the fact that at no point of time, the account was in default and hence, there is no chance to declare the account as Non Performing Asset. Later, after one year, Exhibit P9 notice was issued with the same contentions as in Exhibit P8. The appellant has submitted a reply to the same. Thereafter, Exhibit P10 communication was issued by the Bank stating that the first respondent is withdrawing Exhibits P5 and P8 notices stating that inadvertent mistakes were crept in the notices. But, after a few days, Exhibit P11 notice was issued stating the same contention as that of Exhibits P5 and P8.

4. Aggrieved by the same, appellant approached the learned Debt Recovery Tribunal, Ernakulam, by filing S.A. No. 144 of 2019, challenging the proceedings of the Bank against the company. The respondent Bank also filed O.A. No. 168 of 2019 seeking realisation of Rs.963.28 lakhs. However, the learned DRT-2, Ernakulam, as per order dated 21.03.2020, dismissed S.A. No.144/2019, on the ground of limited jurisdiction and held that the respondent Bank is duty bound to recover the dues as on 29.06.2019. Being aggrieved, the appellant has filed W.P.(C) No. 12035 of 2020.

5. Writ court, by order dated 18.06.2020, found that the writ petition would not be maintainable and taking note of the present COVID-19 pandemic situation and the circumstances, that the DRAT, Chennai, was not holding regular sittings, adjourned the matter and restrained the Bank from taking possession of the property or sale of the property, till 31.08.2020. Thereafter, writ court, by another order dated 30.09.2020, while adjourning the case, directed the appellant company to prefer an appeal before the DRAT, in the meanwhile.

6. Taking note of the submission made by learned counsel for the appellant company that an appeal is yet to be filed before DRAT, writ court dismissed the writ petition on 15.10.2020, finding that the writ petition is not maintainable before this Court and directing that the stay already granted would continue to be in force till 31.10.2020.

7. Mr. K.P.Dandapani, learned Senior Counsel appearing for the appellant, contended that the learned Tribunal failed to legally appreciate the evidence adduced and the documents available and, therefore, Exhibit P21 order passed by the DRT-2, Ernakulam, is unsustainable in law and liable to be set aside. He also contended that the learned single Judge, while holding that the writ petition is not maintainable, erroneously upheld the stand taken by the DRT that the DRT is vested with 'limited jurisdiction' with respect to Section 17 of the SARFAESI Act and the substantive question with respect to Sections 13(2) and 13(3A) are outside the scope of judici