Writ petition wasn’t maintainable where appellant had remedy under SARFAESI: HC

Case Details: Mrs. Smita v. Jitendra - [2022] 141 taxmann.com 255 (Bombay)

Judiciary and Counsel Details

• • Amit B. Borkar, J.
  • S.S. Ghate and A.K. Choube, Advs. for the Appellant.
  • V.K. Kolte, Adv. for the Respondent.

Facts of the Case

In the instant case, the respondent had invoked the provisions of the SARFAESI Act by issuing action under sections 13(2) and 13(4) against which the appellant approached the Debt Recovery Tribunal (DRT) but could not get favourable relief. The appellant approached the High Court by way of writ petition seeking permanent injunction against Respondent from creating third party interest in the subject matter of suit but could not get favourable relief. It was, therefore, stated that no relief of injunction could be granted against the Respondent by Writ Court.

After hearing both sides Trial Court rejected the application for a temporary injunction, and held that the appellant had the remedy to approach the Debt Recovery Tribunal challenging the auction and, therefore, rejected the said application. Being aggrieved by the said order, the appellant approached instant Court by present appeal.

High Court Held

The High Court held that any person aggrieved against any measures under provisions of SARFAESI Act is entitled to approach Debt Recovery Tribunal or Appellate Tribunal, and Civil Court has no jurisdiction to entertain such matters.

The Court further held that SARFAESI Act overrides other laws in terms of section 35 if they are inconsistent with provisions of Act, which takes in section 9 of CPC as well

The Court observed that where secured creditor had proceeded against secured assets of borrower, by issuing action under sections 13(2) and 13(4), Trial Court was justified in rejecting application by borrower for a temporary injunction restraining secured creditor from creating third party interest.

List of Cases Reviewed

• • Sree Anandhakumar Mills Ltd. v. Indian Overseas Bank [2019] 14 SCC 788 (para 12) distinguished.
  • State Bank of Patiala v. Mukesh Jain [2016] 76 taxmann.com 132/[2017] 139 SCL 49 (SC)
  • SBI v. Allwyn Alloys (P.) Ltd. [2018] 8 SCC 120
  • Jagdish Singh v. Heeralal [2014] 1 SCC 479
  • Sree Anandhakumar Mills Ltd. v. Indian Overseas Bank [2019] 14 SCC 788 (para 14) followed.

List of Cases Referred to

• • Bank of Baroda v. Gopal Shriram Panda [2021] 125 taxmann.com 382 (Bom.) (para 5)
  • Mohan Lal v. Dwarka Prasad AIR 2007 Raj. 129 (para 5)
  • Authorised Officer v. Nandini [C.R.P. PD. No. 3777 of 2009, dated 29-10-2010] (para 5)
  • Indian Bank v. ABS Marine Products (P.) Ltd. [2006] 5 SCC 72 (para 5)
  • Padma Ashok Bhatt v. Orbit Corporation Ltd. 2017 (6) Mh. L.J. 102 (para 5)
  • Tajunissa v. Vishal Sharma [2022] 136 taxmann.com 152/171 SCL 110 (Delhi) (para 5)
  • Frontline Corporation Ltd. v. Punjab and Sind Bank 2018 (1) Civil LJ 2013 (para 5)
  • SBI v. Allwyn Alloys (P.) Ltd. [2018] 8 SCC 120 (para 7)
  • State Bank of Patiala v. Mukesh Jain [2016] 76 taxmann.com 132/[2017] 139 SCL 49 (SC) (para 8)
  • Jagdish Singh v. Heeralal [2014] 1 SCC 479 (para 9)
  • Sree Anandhakumar Mills Ltd. v. Indian Overseas Bank [2019] 14 SCC 788 (para 10).