HIGH COURT OF CHHATTISGARH, BILASPUR 31 CORAM : Hon’ble Shri Sunil Kumar Sinha 8r. Hon’ble Shri Radhe Shyam Sharma, J J; Writ Appeal No. 319 of 2011 M/ s Shwet Chemicals India Private Ltd. Vs. State Bank of India ORDER For consideration ‘ Sd/— Sunil Kumar Sinha Judge HON’BLE SHRI JUSTICE RADHE SHYAM SHARMA :1 «amwk ;:/>afr r Sdl‘ i Radhe Shyam Sharma ‘ , Judge Post for Order: ;//O7/2011 { Sd/' Judge i g /o7/2011 A. FR HIGH COURT OF CHHATTISGARH BILASPUR CORAM : Hon’ble Shu Suml Kumar Slnha 86 Hon’ble Shrl Radhe Shyam Sharma, J J Writ Appeal No. 319 of 2011 APPELANT Petitioner M/s Shwet Chemicals India Private Ltd., a company duly registered under the relevant provisions of the Companies Act, 1956 having its’ office at 21 Samta Colony, Raipur (CG) .through Shri Ritesh Agarwal, son of Shri Kamal Kumar Agarwal, aged about 33 years, resident of Sarnta Colony, Raipur (CG) v‘ RESPONDENT Versus State Bank of India, a banking company duly incorporated under the relevant provisions of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 having inter-alia amongst other branches a branch office at Medium Enterprises (Sales Hub), SME Branch Premises, Ground Floor, Zonal Office Premises, Byron Bazar, Raipur (CG) and it's , Stressed Assets Management Branch at 1, Arera Hills, lst Floor, Near District Jail, Bhopal (MP) 462011 (Writ Appeal under Section 2( 1) of the Chhattisgarh High Court (Appeal to Division Bench), Act 2006) V \ w Aim 319 of2011 39 % Agpearance: \ Mr. B.P. Sharma, Advocate for the appellant. Mr. Gautam Bhaduri, Advocate for the respohdent on Caveat l Petition No. 357/201 1. ORDER (01072011) Following order of the Court was delivered by Sunil Kumar .Sinha, J. (1) The appellant was served with the impugned notice dated 15.4.2011 (Annexure-P/ 1), by the respondent, for handing over the possession/of the assets/properties on account of outstanding amount of loan which the appellant did not satisfy even after. service [of a notice u/s 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) ,and expiry of the statutory period thereof. The dates for taking over the physical possession of the properties mentioned in the noticewwere also-fixed by the impugned notice. (2) The appellant challenged the validity of the said notice by filing a writ petition. (3) The appellant contended before the writ Court that the earlier demand notice Cu/s 13 (2) of the Act was not served ‘upon the appellant Company as it was served on the Directors, therefore, the earlier notice and the impugned notice dated / 3 WVA‘ No. 319 of2011 .és/ 15.4.2011 (Annexure—P/ 1) for taking possessiori of the mortgaged property were bad—in—law. (4) The writ Court, considering the contents of_ the impugned notice and the provisions of Section 13 of the Act, and further referring to various decisions of the Supreme Court including the decision of Indian Overseas Bank —Vs- Ashok Saw Mill, (2009) 8 SCC 366, held that an alternative efficacious remedy of appeal u/s 17 of the Act was available to the appellant, and declined to’ entertain the writ petition under Article 226 of the Constitution of India. (5) Mr. B.P. Sharma, learned counsel appearing on behalf of the appellant, raised similar contention and argued that the notice u/s 173 (2) was not served on theappellant-Company as such, and the same was served on the Directors of the appellant—Company, therefore, the entire action Vitiates. He also argued that the impugned notice was not a measure to’recover the secured debt u/s 13 (4) of the Act, therefore, an appeal u/s 17 would not lie and the impugned order passed by the writ Court holding that an efficacious alternative remedy was available to the appellant deserves to be set—aside. (6) Mr. Gautam Bhaduri, learned counsel appearing for the respondent on Caveat Petition No. 357/2011, submitted that the notices were received by the individual Director on behalf of the Company, therefore, the argument that the notice was not served ‘ i v 4 W.A. No. 319 0f2011 .‘gé properly cannot be entertained. He also opposed the argument g relating to Section 13 (4) of the Act. (7) We have heard learned counsel for the parties at length and have also perused the records of the writ Court. (8) Section 17 of the Act provides that any person (including borrower), aggrieved by any of the measures referred to in sub- section (4) of section 13 taken by the secured creditor or his authorized officer under Chapter III of the Act, may make an application along with such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within the specified period. This makes it clear that the borrower has every right to file an appeal if he is aggrieved by recourse to any measure by the secured creditor u/s 13 (4) or the authorized officers under Chapter III. Mr. Sharma has argued that no measures were taken under sub—section (4) of Section 13 till the issuance of impugned notice, therefore? the statutory appeal would not lie and the writ petition of the appellant would have been entertained. (9) Clause (a) of sub—section (4) of Section 13 provides that in case the borrower fails to discharge his liability in full within the period specified in sub-section (2) of Section 13,‘ the secured 'creditor may take recourse to take possession of the secured 1.x assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured assets to 5 W.A. No. 319 of2011 29” recover his secured debt. The contents of the impugned notice (Annexure—P/ 1) would show that by the said notice, the secured creditor has directed the borrower to remain available at the site on respective dates mentioned in the notice for smooth and peaceful handing over of the possession of the assets/properties to the creditOr—Bank to recover its debt. We are of the view that the above action of the creditor/Bank was a step to take possession of the secured assets and such stepping-down to take possession would be covered under Clause (a) of sub—section (4) of Section 13 of the Act and thus it was appealable u/s 17 of the Act. (“A (10) The notice was properly served upon the borrower or not and Whether a valid service was affected is the subject matter of the appeal, if, in fact, a right of appeal was available to the appellant as an alternative efficacious remedy which we have already held. (11) In United Bank of India -Vs- Satuawati Tondon And Others, (2010) 8 SCC 110, the Supreme"Court, considering the provisions of Sections 13 (4), 14 & 17 (1) of the Act, observed in Paras — 42, 43, 44 8r, 45 as under:- "42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13 (4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17 (1). The expression “any person” used in Section 17 (1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13 (4) or Section l4. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 6 W.A. N0. 319 of2011 35; 17 and 18 and are required to decide the matters Within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAEST Act are bcth expeditious and effective. 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our View, While dealing With the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi—judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authgrity, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of'any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it‘is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by I ‘1 7 W.A. No. 319 0f2011 27 filing application, appeal, revision, etc. and the particular legislation contains a detailed f mechanism for redressal of his grievance.” (12) In Kanaiyalal Lalchand Sachdev And Others -Vs- State of Maharashtra And Others, (201 1) 2 SCC 782, it was held by the Supreme Court that if a matter falls within the ambit of Section 17 (1) of the Act, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13 (4) of the Act, by providing for an appeal before the DRT. The Supreme Court held that the High Court was right in dismissing the writ petition on the ground of‘efficacious remedy as it is well settled that ordinarily relief under Articles 226 / 227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. The earlier judgments rendered in Sadhana Lodh -Vs- National Insurance Co. Ltd., (2003) 3 SCC 524; Surya Dev Rai —Vs- Ram Chander Ra; (2003i 6 SCC 675 & State Bank of India —Vs- Allied Chemical Laboratories, (2006) 9 SCC 252 were also referred to. (13) For the foregoing reasons, we, do not find any substance in the appeal. The appeal is liable to be dismissed and is hereby vatti dismissed at the motion stage itself, Sd/— iSunilKumar Sinha i a Sdl— A " 3, "a Judge A ‘l " v Radhe Shvam Sham“ Judge