Legal action under the SARFAESI Act is not barred by concurrent proceedings under the DRT, and where an efficacious alternative remedy exists, a writ petition is unsustainable.

1. The writ petition has been filed under Art.226 of the Constitution, seeking an order to issue a writ of certiorari, calling for the records of the second respondent pertaining to the possession notice, dated 30.08.2005 and the consequential sale notice, dated 16.11.2005 and quash the same.

2. According to the petitioners, the impugned order of the second respondent was passed invoking the provisions of S.13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as SARFAESI ACT), however, the impugned possession notice, dated 30.08.2005 and subsequent sale notice, dated 16.11.2005 are totally illegal, arbitrary and violative of principles of natural justice, hence, liable to be quashed.

3. The petitioners have further stated that they have submitted their explanation, dated 22.01.2005 to the notice sent under S.13(2) of SARFAESI Act, however, without considering the same, the impugned notice was issued, hence, the same is liable to be quashed. It is further contended that no valid mortgage has been created and a non - speaking order was passed by the second respondent, without affording adequate opportunity to the petitioners and that the respondents have failed to give credence to the order of the Debt Recovery Tribunal, dated 03.01.2005 passed in I.A.No.406 of 2004, which was filed by the petitioner herein, seeking a direction to the respondent bank to return back the original documents, however, the same was rejected on the ground that the question involved was a question of fact and the same could be decided only after a full fledged trial is completed. In the writ petition, the petitioners have stated that there is no alternative remedy available to the petitioners.

4. It is not in dispute that the petitioners are the guarantors for the loan obtained from the Indian Bank by the principal debtor. It is a settled proposition of law that the liability of the guarantors are joint and several and co - extensive, as that of the principal borrower.

5. Mr. C. Johnson, learned counsel appearing for the respondents submitted that the writ petition is not legally maintainable, in view of the SARFAESI Act and Debts Recovery Tribunal Act as efficacious alternative remedy is available to the petitioners. Learned counsel appearing for the respondents further contended that there is no illegality in the impugned notices sent by the respondents, being secured creditor, a Nationalised Bank. As it is a legal action, being taken by the respondents, it is not open to the petitioners to challenge the same by way of filing the writ petition under Art.226 of the Constitution of India.

6. In support of his contention, the learned counsel appearing for the respondents submitted the decisions in Transcore v. Union of India and Another, reported in 2007 (I) BC 33 (SC) and Mardia Chemicals Ltd., and Others v. Union of India and Others reported in 2004 (4) SCC 311 .

7. In Transcore v. Union of India and Another reported in 2007 (I) BC 33 (SC), the Hon'ble Supreme Court has held that withdrawal of O.A., pending before the Debt Recovery Tribunal, under Debt Recovery Tribunal Act cannot be a pre - condition for taking recourse to Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act and it is for the bank or financial institution to exercise its discretion. It has been made clear by the Hon'ble Apex Cou