M.Malarvizhi v. The District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2019 CORAM :
THE HON'BLE MRS.V.K.TAHILRAMANI, CHIEF JUSTICE AND The HON'BLE MR.JUSTICE M.DURAISWAMY W.P. No.34309 of 2018 and W.M.P.Nos.39884 & 39885 of 2018 M.Malarvizhi .. Petitioner Vs.
1.The District Collector, District Magistrate, Dharmapuri.
2.M/s.Sundaram BNP Paribas Home Finance Limited rep by its Authorized Signatory, Sundaram Towers, No.46, Whites Road, Chennai - 600 014.
3.A.Thaibama 4.The Superintendent of Police, Dharmapuri.
5.The District Registrar, Registration Department, Dharmapuri.
.. Respondents Petitions filed under Article 226 of the Constitution of India praying for issue of Writ of certiorari to call for the records pertaining to the possession notice issued under Rule 8
(1) of the Security Interest Enforcement Rules, 2002 dated 03.08.2018 on the file of the 2nd respondent, to quash the same. For Petitioner : Mr.R.Selvakumar For Respondents : Mr.T.M.Pappiah, Special Government Pleader (R5)
O R D E R
(Order of the Court made by M.DURAISWAMY,J.) The petitioner has filed the above Writ Petition to issue a Writ of certiorari to call for the records pertaining to the possession notice issued under Rule 8(1) of the Security Interest Enforcement Rules, 2002 dated 03.08.2018 on the file of the 2nd respondent and to quash the same.
2.The petitioner has challenged the possession notice without exhausting the alternative remedy by way of an appeal under Section 17 of the SARFAESI Act.
3.1.The Hon'ble Supreme Court of India, in the judgments reported in 2018 (3) Supreme Court Cases 85 [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C.] and 2018 (1) Supreme Court Cases 626 [Agarwal Tracom Private Limited Vs. Punjab National Bank and others] held that the aggrieved parties cannot challenge the SARFAESI proceedings directly by filing a Writ Petition under Article 226 of the Constitution of India without exhausting the appeal remedy available to them.
3.2.In a recent decision of the Supreme Court dated 05.10.2018 in ICICI Bank Limited v. Umakanta Mohapatra, Civil Appeal Nos.10251 - 10265 of 2018 arising out of SLP (C) Nos.16758 - 16772 of 2015, the Supreme Court has referred to the decision in Authorized Officer, State Bank of Travancore and Anr. vs. Mathew K.C., (2018) 3 SCC 85, and has observed that despite several judgments, including the decision of Mathew K.C., supra, the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI') and keep granting interim orders in favour of persons who are Non-Performing Assets. Further, the Apex Court held that Writ Petition filed by the aggrieved party without exhausting the statutory remedy available under the SARFAESI Act and Recovery of Debts Due to Banks and Financial Institutions Act, is not maintainable.
4.Since the petitioner has filed the Writ Petition without exhausting the alternative remedy by way of an appeal under Section 17 of the SARFAESI Act, following the ratio laid down by the Apex Court, we are not inclined to entertain the Writ Petition. Accordingly, the Writ Petition is dismissed. However, it is open to the petitioner to challenge the possession notice
in accordance with law. No costs. Consequently, the connected miscellaneous petitions are closed.
Sd/- Assistant Registrar(CS-IV) //True copy// Sub Assistant Registrar va To 1.The District Collector, District Magistrate, Dharmapuri.
2.The Superintendent of Police, Dharmapuri.
3.The District Registrar, Registration Department, Dharmapuri.
+1cc to Mr.R.Selvakumar, Advocate SR.No.1152 +2cc to Government Pleader SR.No.1932 & 1438 W.P.No.34309 of 2018 and W.M.P.Nos.39884 & 39885 of 2018 SAI(CO) GMY(28/01/2019)