Point of Law : Court may not exercise the power under Article 227 of Constitution of India if the Court is of the opinion that the aggrieved party has another efficacious remedy available under the CPC.

JUDGMENT :

The petitioner has approached this Court challenging Ext.P2 order passed in an un-numbered Securitisation Application, rejecting the Securitisation Application on the ground that it is barred by limitation. The undisputed facts are that the Chief Judicial Magistrate Court, Ernakulam, had issued an order under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act), for taking physical possession of the secured asset. The Advocate Commissioner had issued a notice on 29-07-2022, requiring the applicant to handover the vacant possession of the property within a period of 14 days. Pursuant to the said notice, the petitioner filed a Securitisation Application under Section 17 of the SARFAESI Act on 14-09-2022, and the same has been rejected on the ground that the Securitisation Application was not filed within a period of 45 days from 29-07-2022. According to the Tribunal, the application was delayed and was out of time by two days.

2. The learned counsel appearing for the petitioner states that the period of limitation cannot be counted from 29-07-2022. It is submitted that even on the completion of 14 days from 29-07-2022, the petitioner has a cause of action to file the Securitisation Application, as the threat of dispossession is imminent. It is submitted that the taking of physical possession of the secured asset is a cause of action in itself and therefore, the Tribunal ought not to have mechanically decided that cause of action arose on 29-07-2022 and not thereafter. It is submitted that the limitation would not commence from the date of issuance of notice by the Advocate Commissioner. It is contended that, in the present case, there is a continuing cause of action.

3. The learned counsel appearing for the respondent Bank submits with reference to the judgment of the Supreme Court in Varimadugu Obi Reddy v. Sreenivasulu, 2022 (6) KLT OnLine 1125 (SC), that Ext.P2 order is an appealable order under Section 18 of the SARFAESI Act and therefore the petitioner cannot seek to bypass the statutory remedy and approach this Court under Article 227 of the Constitution of India. It is submitted that the period of limitation would commence from 29-07-2022 and the petitioner was clearly out of time by two days to file the Securitisation Application. He contended that the petitioner should have filed the Securitisation Application on or before 12-09-2022, but the same was filed only on 14-09-2022. It is also submitted that the liabilities of the petitioner are huge. He does not dispute the fact that on the Advocate Commissioner actually taking possession of the secured asset, the petitioner will have a cause of action to approach the Tribunal. In other words, according to the respondent Bank, on physical possession being actually taken, an application could be filed within 45 days from the date of taking possession.

4. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent Bank, I am of the view that the petitioner is entitled to succeed. On each of the days after the issuance of the notice by the Advocate Commissioner, the petitioner had a cause of action to move before the Debts Recovery Tribunal and therefore, the limitation could not have been counted from the date of issuance of the notice by the Advocate Commissioner. In Sami K. v Branch Manager, Bank of India and others, 2011 (3) KHC 414, this Court held :

“6. At the outset, I would note that although the Supreme Court has upheld the constitutional validity of the Act, it cannot be gainsaid that the Act is a very harsh legislation, which results in very disastrous consequences to the owner of the property against which a measure under S.13(4) of the Act has been taken. That being so, the provisions regarding the remedies provided for persons aggrieved by such action should be construed liberally. No doubt, the Supreme Court has categorically hel