a^ ^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fC) No. _^Slf_/2010 PETITIONER ^^^ BALDEV RAJ JAIN S/oLate Shri. L.R.Jain Aged about 65 Years, ^' ,• AgCU UUUUl OJ i cciry, ''^"^...••' .^ Retired CSEB employee. •<^3;'^i^%--'""'" R/o:House No. Plot No^ 19^agardeep Enclave, .••'''^?--'^\^ Ameri, Near Usalapur Rly.Crossing, _^ ^<^t^ :v^'"\\.y" • • ^"^'^ (PO) Usalapur, BILASPUR(CG) ^\^" ^•••" VERSUS 5PONDENTS \ ^ ^'" 5. CENT BANK HOME FINANCE LIMITED, (A subsidiary of Central Bank oflndia) Through : The Branch Manager, Cent Bank Home Finance Limited, Gandhi Chowk^ Near Laxmi Talkies, Juna, BILASPUR -495001 (Chhattisgarh) Shri. Nand Kumar Yadav S/o Shri. Lorikram Yadav Aged abbut 41 Years, Farmer, R/o : Village : Kusmuli/(via) Kosekafti^ (PO) Mafasgara, Takhatpur Thana, Tehsil: Kota, District: Bilaspur (CG) M/s Surya Builders & Promoters, Through : Its Proprietor-Santosh Kumar Sahu, S/o Late Shri. Mansharam Sahu, Residing at: Kali Mandir, Tifra, BILASPUR(CG) ShrLNireshShukIa S/o Shri. Rajeev Ratan Shukla Aged about 42 Years, Govt. Employee, R/o tn front ofNova Office, C/o Hanuman Shukla?s House, Thana: Civil Lines, BILASPUR District: Bilaspur (CG) The Sub-Registrar, Registrar Office, BILASPUR(CG) •• 1 WRIT PETITIONUNDER_^tTICLE 226 OF THE CONSTITUTION OF INDIA fflGH COURT OF CHEIATTISGARH AT BILASPUR S.B: Hon^ble Shii Prashant Kumar Mislira •^ ^. PETITIONER Writ Petition (Q No. 4511/2010 : Baldev Raj Jain Versus RESPONDENTS : Cent Bank Home Finance Limited & Ors Appearance: Shri B.P. Rao, counsel forthe petitioner. Shri Anand Shukla, counsel for respondent No. 1. WRIT PETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA ORAL ORDER (26.08.2010) The petitioner is aggrieved by the order dated 12/07/2010 passed by the Chief Judicial Magistrate, Bilaspur on an application and in exercise ofpowers under section 14 ofthe Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act'). (2) The respondent No.l had submitted the subject application after issuance ofand publication ofnotice under section 13 (2) ofthe SARFAESI Act when the borrower did not deposit the loan amount after expiry ofthe period of60 days. The application under section 14 has been moved for taking possession ofthe secured as&et. The Chief Judicial Magistrate has issued warrant ofpossession in favour ofthe respondentNo.l. (3) Leamed counsel for the petitioner has argued that the petitioner is not the borrower and is bonafide purchaser ofthe property from its r ^-^l^ lls&^. ^y, SS^. '! "t J b.^^' ^^sas^^ -^.- previous owner and is in possession since last so many years. According to learned counsel there is no out standing amountagainst the petitioner, therefore issuance of warrant of possession vvithout arraying the petitioner as party is illegal. (4) In the niatter of United Bank of India Vs. Satyawati Tondon and others decided on 26th July, 2010 the Supreme Court has held thus in paragraph 17 ofthe report: "There is another reason vvhy the impugned order should be set aside. If respondent No.l 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 ofwide iniport. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 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 SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overiooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 ofthe Constitution if an effective remedy is available to the aggrieved person and that this mle applies with greater rigour in matters involving recovery oftaxes, cess, fees, other types of public money and the dues of banks and other j&nancial institutions. In our view, ^ while dealing with the petitions involviag challenge to the / action taken for recovery of the public dues, etc., the High .^'^•^' /"^••-s% ^1-^!^^ ^' l%^--y ;s (5) Court must keep in mind that the legislations enacted by Parliament and State Legislatures forrecoveiy ofsuch dues are code unto themselves masmuch 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 ofany aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exliaust the remedies available under the relevant statiite". In view ofthe law laid down by the Hon'ble Supreme Court ^ and in view of the availability of the alternative remedy of filing an application before the tribunal under section 17(1) ofthe SARFAESI Act, this court is not inclined to entertain this writ petition filed under article 226 ofthe Constitution oflndia. (6) The petition is dismissed as not maintainable. prastian^umarMfetoa Judge