JUDGMENT

Dated this the 25th day of August, 2022 S.Manikumar, C.J.

Before the writ court, the petitioners in W.P.(C)No.33664 of 2015 have sought for the following reliefs:

“I. To call for the records leading to Exhibits P4 notice under the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and to quash the same to the extent of seeking to take possession of the property mentioned as Item No. 3 in Exhibit P1 notice;

II. To declare that the first respondent bank and second respondent are entitled to take physical possession of such part or whole of a property as is sufficient to cover the bank dues in a sale and that property mentioned as Item No.3 in Exhibit P1 notice need to be taken physical possession by the bank only if the properties mentioned as Item No. 2 and 4 in Exhibit P1 notice are not sufficient to realise the bank dues after sale of the same;

III. To issue a writ of mandamus or any other appropriate writ, order or direction to the first respondent bank and second respondent not to take physical possession of the property mentioned as Item No.3 in Exhibit P1 notice till the properties mentioned as Item No. 2 and 4 in Exhibit P1 notice are taken possession of.”

2. Adverting to the rival contentions, writ court, vide judgment in W.P.(C)No.33664 of 2015 dated 04.11.2015, declined to grant the reliefs sought for. Being aggrieved, instant writ appeal is filed.

3. Record of proceedings shows that while admitting the writ appeal, a Hon’ble Division Bench of this court, on

13.11.2015, ordered thus:

“Admitted. Adv Sri. R.S.Kalkura takes notice for the respondents.

2. This writ appeal is against the judgment of the learned single Judge refusing to interfere with further measures under the provisions of the SARFAESI Act, 2002. In the earlier round, the appellants-petitioners got certain directions in their favour through Ext.P3 judgment. Those directions were not complied with. Hence, further measures were pushed through and now the appellants- petitioners are facing actual physical dispossession from residential premises.

3. Hearing the learned counsel for the appellants-writ petitioners and the learned counsel for the first respondent Bank, we notice that there are four items of property covered by the security. One item is garden land which is not liable to be proceeded under SARFAESI proceedings. Out of the other three, the factory premises, going by the submissions on behalf of the Bank, stands leased out by the appellants to somebody else and is, therefore, being operated by the lessee through workers. Ultimately, the Bank zeroed in on the residential building of the appellants; at the stage at which the proceedings have reached. We also need to bear in mind that the appellants stand invoked Article 226 of the Constitution of India, notwithstanding the fact that they had adequate efficacious remedy in the form of an appeal under the provisions of the SARFAESI Act before the Debt Recovery Tribunal. Therefore, we are of the prima facie view that it is not available in this jurisdiction to go by the niceties of principles emanating out of the provisions of the SARFAESI Act and the Rules therein and thereby interfere with the impugned proceedings. We caution ourselves from doing so because, if we venture to do it, we would be converting an application under Article 226 of the Constitution of India to be merely a statutory appeal under the provisions of the SARFAESI Act.

4. Be that as it may, we think that if the appellants have any intention to liquidate the out-standings by protecting the residential building, amounts will have to be paid to ensure that the SARFAESI proceedings are held back by the Bank. Taking into consideration the contents of Ext.P3 which is a previous judgment inter partes and the views of the learned single Judge as reflected through the impugned judgment, we order that Bank can take actual physical possession of the residential building of the appellants, however