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2018 Supreme(Raj) 1996
IN THE HIGH COURT OF RAJASTHAN
Vijay Bishnoi, J.
Anil Kumar Sotwal - Appellant
Versus
District Magistrate - Respondent
Civil Writ Petition No. 1958 of 2018
Decided On : 09-02-2018
Mr. Vishal J. Dave, Mr. Falgun Buch and Mr. Nipun Singhvi, Advocates, for the Petitioner
A writ petition challenging an order passed by the District Magistrate under Section 14 of the SARFAESI Act and a notice issued by the Authorized Officer under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 is not maintainable in view of the availability of alternate remedy of filing an appeal under Section 17 of the SARFAESI Act.
Headnote:
SARFAESI ACT - SECTION 13(2), 13(4), 14, 17 - AVAILABILITY OF ALTERNATE REMEDY - WRIT PETITION DISMISSED: The writ petition filed by the petitioners challenging the order passed by the District Magistrate under Section 14 of the SARFAESI Act and the notice issued by the Authorized Officer under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 is dismissed on the ground of availability of alternate remedy of filing an appeal under Section 17 of the SARFAESI Act.
Fact of the Case:
The petitioners took a loan from respondent No. 2 Aditya Birla Housing Finance Ltd. by mortgaging a house. The account was declared as Non Performing Asset (NPA) and notices under Section 13(2) and 13(4) of the SARFAESI Act were issued. The respondent No. 2 moved an application under Section 14 of the SARFAESI Act before the District Magistrate, Jodhpur, who passed an order on 08.11.2017 and the possession of the property was taken by the respondents on 26.12.2017. The petitioners filed a writ petition challenging the order and the notice.
Finding of the Court:
The Court held that the petitioners have an alternate remedy of filing an appeal under Section 17 of the SARFAESI Act and therefore, the writ petition is not maintainable. The Court also held that the petitioners cannot challenge the notices issued under Section 13(2) and 13(4) of the SARFAESI Act in the writ petition as they have not specifically prayed for quashing the said notices in the prayer clause of the writ petition.
Issues: 1. Whether the writ petition is maintainable in view of the availability of alternate remedy of filing an appeal under Section 17 of the SARFAESI Act? 2. Whether the petitioners can challenge the notices issued under Section 13(2) and 13(4) of the SARFAESI Act in the writ petition?
Ratio Decidendi: 1. The Court held that the petitioners have an alternate remedy of filing an appeal under Section 17 of the SARFAESI Act and therefore, the writ petition is not maintainable. The Court relied on the judgments of the Supreme Court in Standard Chartered Bank vs. V. Noble Kumar and Ors. and Harshad Goverdhan Sondagar vs. International Assets Reconstruction Company Ltd. and Ors. to hold that a borrower has a remedy of filing an appeal under section 17 of the SARFAESI Act if he is aggrieved by any measure for taking possession of the secured asset. 2. The Court held that the petitioners cannot challenge the notices issued under Section 13(2) and 13(4) of the SARFAESI Act in the writ petition as they have not specifically prayed for quashing the said notices in the prayer clause of the writ petition.
Final Decision: The writ petition is dismissed on the ground of availability of alternate remedy. However, the petitioners are free to avail alternate remedy available to them.
JUDGMENT
Vijay Bishnoi, J. - This writ petition is filed by the petitioners praying for following reliefs:
"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and
i. By an appropriate writ order or direction, the impugned order dated 08. 11. 2017 (Annex-8) passed by the District Magistrate Jodhpur while exercising its power under Section 14 of Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act (hereinafter to be referred as 'the SARFAESI Act') may kindly be quashed and set aside, the respondent NBFC may kindly be directed to restore the possession of the petitioners on the property in question.
ii. By an appropriate writ order or direction, the impugned notice dated 15. 01. 2018 (Annex-10) informing the petitioners about the auction proceedings proposed to be taken by the respondent NBFC and all further proceedings may kindly be quashed and set aside and the respondent NBFC may kindly be directed to accept the outstanding amount due on the part of petitioners and regularize/upgrade the loan account of the petitioners.
iii. Any other appropriate, writ, direction or order which this Hon'ble Court may deem it just and proper in the facts and circumstances of the case, may kindly be issued.
iv. Cost of this writ petition may kindly be awarded to the humble Petitioner. "
2. Facts of the case, in a nutshell, are that the petitioners took a loan of Rs. 2,47,00,000/- from respondent No. 2 Aditya Birla Housing Finance Ltd. by mortgaging a house - Prem Niwas situated at 1st B Road, Sardarpura, Kumharon-ka-Mandir, Jodhpur admeasuring 146. 60 square yards (hereinafter to be referred 'as the property in question'), for which an agreement was executed between the petitioners and the respondent No. 2 on 29. 02. 2016. The account of the petitioners was declared as Non Performing Asset (NPA) on 14. 06. 2017 and thereafter notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act' hereinafter) was issued on 08. 07. 2017 and another notice under under Section 13(4) of the SARFAESI Act was issued on 13. 09. 2017 and thereafter the respondent No. 2 moved an application under Section 14 of the SARFAESI Act before the District Magistrate, Jodhpur on 16. 10. 2017.
3. The District Magistrate, Jodhpur while exercising powers under section 14 of the SARFAESI Act passed the order dated 08. 11. 2017 and the possession of the property in question was taken by the respondents on 26. 12. 2017 and vide letter dated 15. 01. 2018, the property in question is put to e-auction to be held on 22. 02. 2018.
4. This Court has raised a query why this writ petition be not dismissed in view of the alternate remedy available to the petitioners to file an appeal under Section 17 of the SARFAESI Act. In response to the said query, learned counsel for the petitioners has submitted that as a matter of fact the petitioners are challenging the order dated 08. 11. 2017 passed by the District Magistrate, Jodhpur while exercising powers under section 14 of the SARFAESI Act and the notice dated 15. 01. 2018 issued by the Authorized Officer for the respondent No. 2 under Rule 8(6) of the Security Interest (Enforcement) Rules, 2002 (for short 'the Rules of 2002') and against the said order and notice, the petitioners cannot file appeal under section 17 of the SARFAESI Act and, therefore, this writ petition cannot be dismissed on the ground of availability of alternate remedy.
5. In support of the above contention, learned counsel for the petitioners has placed reliance on decisions of Hon'ble Supreme Court rendered in Standard Chartered Bank vs. V. Noble Kumar and Ors. , 2013 9 SCC 620 and Harshad Goverdhan Sondagar vs. International Assets Reconstruction Company Ltd. and Ors. , 2014 6 SCC 1. He has also placed reliance on a decision of Gujarat High Court dated 11. 10. 2012 rendered in Co
