A writ petition is not maintainable when an alternate and equally efficacious, effective statutory remedy is available under Section 17 of the SARFAESI Act, 2002.

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Writ Petition No. 4769/2019

Suraj Soni S/o Shri Banwari Lal Soni, Aged About 43 Years, Plot

No.9 Maruti Nagar, Dadi Ka Phatak, Benar Road, Jaipur

Rajasthan.

----Petitioner

Versus

1.

Punjab National Bank, Branch Special Ssi, Vkia Jaipur

Through Authorized Officer

2.

M/s Jyoti Industries, Address 25, Vishnu Nagar Dadi Ka

Phatak, Benar Road, Jaipur -302012, And E-130-A Riico

Industrial Area, Palsana, District Sikar.

3.

Inder Singh, R/o 25, Vishnu Nagar Dadi Ka Phatak, Benar

Road, Jaipur -302012

4.

Smt. Nathu Kanwar, R/o 25, Vishnu Nagar Dadi Ka

Phatak, Benar Road, Jaipur -302012

----Respondents

For Petitioner(s)

:

Mr. Ankit Sethi

For Respondent(s)

:

Mr. Vikas Jain

HON'BLE MR. JUSTICE SAMEER JAIN

Order

05/01/2023

1.

The present writ petition is filed with the following

prayers:-

(i) By an appropriate writ order or direction in the

nature thereof, thereby the impugned notice dated

17.05.2018, notice dated 31.10.2018, order dated

1.09.2018, notice dated 30.01.2019 and notice of

Auction dated 16.02.2019 as far as petitioner is

concerned may kindly be quahsed and set aside

being in utter disregard of the provisions of the

SARFEASI Act, 2002.

(ii) By an appropriate writ order and direction the

respondent bank may kindly be directed to exercise

powers under provisions of SARFEASI Act, 2002

(2 of 3)

[CW-4769/2019]

against the borrowers and recover its dues from

market value of the properties of the borrowe which

are equitably mortgaged with the bank as prime

secuity to secure the dues and if any shortfall is

found thereafter then for that shorfall only the

petiitoner gurantor may be held liable recovery

proceedings may be initiated by giving opportunity of

hearing to the petitioner gurantor in view of

principles of natural justice.

(iii) Any other order or direction, which this Hon’ble

Court may deem fit and proper, be also passed in

favour of the petitioner..

2.

Vide order dated 16.04.2019, interim protection was

granted and proposed auction by the respondent-Bank qua the

property in question was stayed.

3.

Learned counsel for the respondents, at the outset, has

raised preliminary objection qua maintainability of the writ petition

and has submitted that petitioner have an alternate and equally

efficacious, effective statutory remedy under Section 17 of the

SARFAESI Act, 2002. The said remedy is adequate to consider the

objections raised by the petitioner. The said remedy is a statutory

remedy available in law and has to be exhausted as SARFAESI Act

is a special piece of legislation and therefore, in view of availability

of alternate remedy, writ petition cannot be entertained.

4.

In support of his claim, learned counsel for the

respondents has placed reliance upon the judgments of the Apex

Court reported in (2010) 8 SCC 110 titled as United Bank of

India Vs. Satyawati Tondan & Ors., AIR 2022 SC 4756 titled

as Balkrishna Rama Tarle Dead Thr LRS & Anr. Vs. Phoenix

ARC Private Limited & Ors. and 2022 Livelaw (SC) 967 titled

as Varimadugu Obi Reddy Vs. B. Sreenivasulu & Ors.,

learned counsel has further relied upon judgments of this Court in

DBSAW No. 406/2022, SBCWP No. 9054/2021 and SBCWP

(3 of 3)

[CW-4769/2019]

No. 13403/2020, to submit that when statutory remedy is

available under fiscal statute like SARFAESI Act, writ court should

not intervene.

5.

Considering the arguments advanced by learned

counsel for the respondents and dictum of Apex Court in series of

judgments referred above (supra) and considering the provisions

of Section 17 of the SARFAESI Act along with other statutory

provisions, this court is not inclined to interfere in the present writ

petition and to dispose of the same with the direction that if

appropriate appeal/remedy is availed by the petitioner in