JUDGMENT

Dated this the 16th day of March 2021 Heard the learned counsel for the petitioner. The learned counsel for the petitioner submits that the respondent Canara Bank is conducting sale of the secured assets by resorting to the provisions of Section 13(4) of the SARFAESI Act. This is being done under the e-

auction.

2. The learned counsel for the petitioner further argued that the respondent-Canara Bank had demanded an amount of Rs.100 Crores which is already paid. It is further argued that an amount of Rs.7.15 Crores was demanded, but an amount of Rs.7.59 crores was actually paid to the respondent Bank. It is further argued that the respondent Bank had also demanded an amount of Rs.10.93 crores in the year March, 2005 and an amount of Rs.7.42 crores was paid to the said Bank. It is further argued that in the year 2017, an amount of Rs.4.19 lakhs was paid to the respondent Canara Bank.

3. The learned counsel for the petitioner relied on judgment in the matter of Mhadagonda Ramgonda Patil Vs. Shripal Balwant Rainade & Others reported in ((1988) 3 SCC 298) and contended that rule of Damdupat is an equitable rule debarring the creditor to recover at any given time, the amount of interest which is in excess of the principal amount due at the time. With this, it is argued by the learned counsel for the petitioner that 100% amount has been paid to the Canara Bank as interest and nothing is now due and therefore, the loan account needs to be closed.

4. With this, the learned counsel appearing for the petitioner prayed that the e-auction sought to be conducted by the respondent Bank be stayed.

5. I have considered the submissions so advanced.

6. Reliefs sought in the petition as seen from the prayer clause is as under.

(a) Debt Recovery Tribunal, Ernakulam may be directed to fix the redemption price by examining the account by appointing an auditor by the DRT Ernakulam.

(b) The respondent-Bank may be prevented by a writ of prohibition or other appropriate writ, order or direction from selling the property pending the disposal of O.A.89/2005 and this writ petition on 17.03.2021 as per Ext.P10.

(c) Debt Recovery Tribunal, Ernakulam may be directed to dispose of O.A. No.89/2005 after considering all the contentions raised in a short time frame fixed by this Hon'ble Court.

7. The interim relief sought reads thus:

For the reasons stated in the writ petition (C)

and the accompanying affidavit thereto, it is most respectfully prayed that this Hon'ble Court may be pleased to stay the sale proclaimed to be conducted by 1st respondent on 17.03.2021 by E-auction on-line, pending disposal of this WP(C).

8. What is sought to be argued by the learned counsel for the petitioner makes it clear that the respondent Canara Bank is taking action under the SARFAESI Act for recovery of debt, it being a secured creditor. What is sought to be sold is secured asset. Following are the observations of the Hon'ble Apex Court in the matter of Authorized Officer, SBT & Another Vs. Mathew K.C. Reported in 2018 (3) SCC 85.

5. ….... The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:

“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh