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2024 Supreme(Online)(GUJ) 1630
HIGH COURT OF GUJARAT
MR. JUSTICE HEMANT M. PRACHCHHAK, J
M/S JAYVEER INDUSTRIES – Appellant
Versus
M/S CFM ASSETS RECONSTRUCTION PVT. LTD. – Respondent
R/SPECIAL CIVIL APPLICATION NO. 3477 of 2024
MR RUSI B TRIVEDI FOR MALAV M MULANI(8844)
Writ petitions under Article 226 are not maintainable when an alternative statutory remedy exists under the SARFAESI Act, emphasizing the need for judicial prudence.
Headnote:(A) Constitution of India - Article 226 - SARFAESI Act, 2002 - Petitioners challenged notice for physical possession of property issued by Court Commissioner without prior notice under Section 13(2) - Court held that the statutory remedy under Section 17 of the SARFAESI Act is available and must be pursued before invoking Article 226 - The High Court cannot entertain petitions under Article 226 when an alternative statutory remedy exists. (Paras 3, 4, 4.1, 4.2, 4.3, 4.4, 6)
(B) Writ Jurisdiction - Maintainability - The court emphasized that the exercise of writ jurisdiction is not absolute and should not be invoked when an effective alternative remedy is available, as reiterated in various Supreme Court judgments. (Paras 4.3, 4.4)
Facts of the case:
The petitioners sought to quash a notice for possession issued under the SARFAESI Act, claiming it was illegal and violated natural justice principles, as they were not served notice under Section 13(2). (Paras 1, 2, 3)
Findings of Court:
The court found that the petitioners have an alternative remedy under Section 17 of the SARFAESI Act and thus dismissed the writ petition without addressing the merits of the case. (Paras 6)
Issues: The main issues were whether the notice was served and the maintainability of the writ petition in light of the available statutory remedy. (Paras 3, 4)
Ratio Decidendi: The court ruled that the existence of an alternative statutory remedy under the SARFAESI Act precludes the maintainability of a writ petition under Article 226, emphasizing the need for judicial prudence in such matters. (Paras 4.4, 6)
Result: Petition dismissed.
| Table of Content |
|---|
| 1. challenge to possession notice (Para 1 , 2) |
| 2. petitioners' claims of illegality (Para 3) |
| 3. disputed facts not adjudicated (Para 4 , 5 , 6) |
| 4. alternative remedy emphasized (Para 7 , 8 , 9) |
ORAL ORDER
1. By way of present petition under Article 226 of the Constitution of India , the petitioners have prayed for the following reliefs :
“(a) YOUR LORDSHIPS BE PLEASED to issue any appropriate writ, order or direction to quash and set aside the impugned notice dated 22/02/2024 passed by the Court Commissioner, Addl. Chief Judicial Magistrate, Radhanpur, as being illegal, without jurisdiction, in breach of the principles of natural justice and the provisions of the SARFAESI Act, 2002 and further direct the respondent bank to defer with the process of taking the physical possession of the property on 03/03/2024 in the interest of justice [At Annexure-A].
(b) YOUR LORDSHIPS BE PLEASED to stay the impugned notice dated 22/02/2024 passed by the Court Commissioner, Addl. Chief Judicial Magistrate, Radhanpur, as being illegal, without jurisdiction, in breach of the principles of natural justice and the provisions of the SARFAESI Act, 2002 and further be pleased to restrain the respondent from taking further steps against the petitioners under the SARFAESI Act, 2002 pending admission and final disposal of the petition [At Annexure-A].
(c) BE PLEASED pass such other and further orders, which may be deemed fit in the interest of justice.”
2. The petitioners have challenged the physical possession notice dated 22.02.2024, which was served upon the petitioner on 22.02.2024 itself, issued by the Court Commissioner of the Addl. Chief Judicial Magistrate, Radhanpur pursuant to the allowing the application filed by the respondent under Section 14 of the Securitization and Reconstructions of financial Assets and Enforcement of Security Interest Act, 2002 (for short “the SARFAESI Act”).
3. Learned advocate for the petitioner has submitted that the order under Section 14 was passed without issuing notice under Section 13(2) of the SARFAESI Act to the petitioner and the same is passed behind the back and it was not served upon the petitioner and directly the notice for possession was issued against the petitioner. He has submitted that by the notice only the petitioner came to know that the respondent Bank is likely to take the possession of the mortgaged property and therefore, the petitioner approached this Court by way of filing the present petition.
3.1 In support of his submissions, learned advocate for the petitioner has referred and relied upon the decision of the Division Bench of this Court passed in Writ Petition (PIL) No.68 of 2012 and submitted that as per the directions issued by the Division Bench, atleast 14 days’ time to be granted by the respondent Bank to the concerned person who is in actual occupation of the property in question and therefore, in the present case, since such procedure was not followed by the respondent Bank, the petitioner has approached this Court and urged that the present petition be entertained and appropriate order be passed in favour of the petitioner as prayed for in the present petition.
4. Heard learned advocate Mr.Rusi B. Trivedi appearing on behalf of Mr.Malav Mulani, the learned advocate for the petitioners and perused the material placed on record. At this juncture, this Court cannot go into the disputed facts that whether the petitioner has received the notice or not or whether the notice was served upon him or not or whether the order was passed behind his back, etc., because all these are the disputed facts and required to be adjudicated and by preferring the Special Civil Application the adjudication of such disputed facts or obligations cannot be dealt with by this Court. It is well settled by the Hon’ble Apex Court way-back in the year 2009 in case of City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala , reported in [2009] 1 SCC 168 , wherein, in paragraph 2
