The availability of a remedy under Section 17(1) of the SARFAESI Act and the importance of adhering to settled legal principles and previous judgments.

JUDGMENT :

B. AMIT STHALEKAR, MANJU RANI CHAUHAN, JJ.

1. Heard Sri Virendra Kumar Shukla, learned counsel for the petitioners, learned Standing Counsel for the respondents no. 1 and 2 and Sri Rahul Sahai, learned counsel for the respondent no. 3.

2. The petitioners in the writ petition are seeking quashing of the order dated 03.08.2018 passed by the Chief Metropolitan Magistrate, Kanpur Nagar in Case No. 6450 of 2017 under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (hereinafter to be referred to as SARFAESI Act).

3. The law in this regard is very clear that when appropriate forum is provided under the SARFAESI Act this Court stands injuncted from interfering with any matter arising out of the proceedings under the SARFAESI Act. The petitioner has a remedy under Section 17 (1) of the SARFAESI Act by approaching the Debt Recovery Tribunal. Therefore, no ground for interference is made out particularly, in view of the judgment of the Supreme Court in the case of United Bank of India vs. Satyawati Tandon and others, reported in (2010) 8 SCC 110 wherein the Court in paragraph 42 & 43 has held as under :

"42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. 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 Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pas interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.

43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."

4. In the case of Standard Chartered Bank Vs. V. Noble Kumar and others reported in (2013) 9 SCC 620, the Supreme Court in paragraph 27 has held as under:

"27.The "appeal" under section 17 is available to the borrower against any measure taken under section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the