IMPORTANT POINT
For the purpose of attracting Section 31(i) of SARFAESI Act, property in question ought to be actually used as agricultural land at the time when security interest was created.

JUDGMENT

Tarlok Singh Chauhan, A.C.J.—As per the pleadings set out in the writ petition, the petitioner availed house loan from the respondent-bank for an amount of Rs.3,00,000/- vide agreement dated 12.04.2013. The same was repaid and thereafter for completion of the house, the petitioner took another loan of Rs.4,50,000/- in October, 2013, out of which an amount of Rs.2,91,823/- remains unpaid for which the petitioner is ready to enter into One Time Settlement with the bank.

However, the respondents have now initiated action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act”) by putting the agricultural land of the petitioner to sale in clear violation of Section 31(i) of the SARFAESI Act. It is in this background that the petitioner has filed the instant petition for grant of the following substantive reliefs:—

“(i) That writ of certiorari may kindly be issued, quashing and setting aside the impugned sale notice issued on 11.11.2022 by the Respondent No.3 (Annexure P-7), order dated 27.10.2022 passed by the District Magistrate, Shimla (Annexure P-8) and notice under Section 13 of SARFAESI Act (Annexure P-9), since the same being illegal, arbitrary and bad in the eyes of law.

(ii) That writ of mandamus may kindly be issued, directing the respondent Bank to afford the petitioner opportunity of One Time Settlement with regard to repay of the outstanding amount of House Loan.”

2. The respondents have not filed their reply but have questioned the very maintainability of this petition; firstly, on the ground that the petitioner has not only an alternate but an efficacious remedy and a proper remedy by approaching the competent authority/Court and secondly the provisions of Section 31(i) of the SARFAESI Act are not attractable in the instant case and, therefore, the writ petition ought to be dismissed with costs.

3. We have have heard the learned counsel for the parties and have gone through the material placed on record.

4. By now, it is well settled that in matters arising out of SARFAESI Act, the writ petitions would not be maintainable in view of availability of an alternate statutory remedy. After-all, the petitioner has chosen to file this writ petition only to circumvent the provisions of pre-deposit before the Debt Recovery Tribunal (DRT).

5. A Division Bench of this Court in a judgment authored by one of us (Justice Tarlok Singh Chauhan) while dealing with an identical issue in CWP No. 1365 of 2020 case titled Mehar Chand vs. State of H.P. and others, decided on 06.01.2021, observed as under:—

“2. It would be evidently clear from the prayers made aforesaid that the proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (for short ‘SARFAESI Act’), are already pending adjudication before the competent authority and what the petitioner under the guise of invoking extraordinary jurisdiction under Article 226 of the Constitution of India is trying is to thwart the proceedings so initiated by the respondents-Bank against him under the SARFAESI Act.

3. The Hon’ble Supreme Court has strongly deprecated the tendency of the High Courts in entertaining the writ petitions filed under Article 226 of the Constitution of India by the aggrieved persons without availing alternative and efficacious remedy available to them and more particularly, in the matters, which arise under the SARFAESI Act.

4. In State Bank of Travancore vs. Mathew K.C., (2018) 3 SCC 85, the Hon’ble Supreme Court while dealing with alternative remedy under the SARFAESI Act held as under:—

3. The SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The H