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SPSK Constructions, & Others v/s The Banking Ombudsman, Reserve Bank of India, Chennai & Others

    W.P. No. 27266 of 2021 & W.M.P. No. 28785 of 2021

    Decided On, 22 February 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE M. DURAISWAMY & THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI

    For the Petitioners: P. Ayyaswamy, Advocate. For Respondents: R2, Balakumar, Advocate.



Judgment Text

(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of writ of certiorarified mandamus calling for the records in respect of the sale notice Ref.No.16121/E-AUCTION/2020/ 140-667 & 783-266 dated 06.11.2021 issued by the 2nd respondent and to quash the same.)

M. Duraiswamy, J.

1. The petitioners have filed the above Writ Petition to issue a Writ of Certiorarified Mandamus to call for the records in respect of the Sale Notice dated 06.11.2021 issued by the 2nd respondent and to quash the same.

2. By the impugned Sale Notice dated 06.11.2021, the borrowers' property was brought to sale and the sale was scheduled to be held on 15.12.2021.

3. Mr.Balakumar, learned counsel appearing for the respondent – Bank submitted that the e-auction was conducted on 15.12.2021 and the property was also sold to the highest bidder viz., Theeraj on the said date.

4. Since the property has already been sold to the highest bidder on 15.12.2021, nothing survives for adjudication in the present Writ Petition. That apart, the petitioner has filed the Writ Petition under Article 226 of the Constitution without exhausting the alternate remedy available to them under Section 17 of the SARFAESI Act.

5. The Hon'ble Supreme Court in The Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C., reported in (2018) 3 SCC 85 and Agarwal Tracom Private Limited Vs. Punjab National Bank and others, reported in (2018) 1 SCC 626 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.

6. In the decision of the Supreme Court in ICICI Bank Limited v. Umakanta Mohapatra, reported in 2018 SCC Online SC 2349, the Supreme Court has referred to the decision in Mathew K.C. case, referred supra, and has observed that despite several judgments, including the decision of Mathew K.C., cited supra, the High Courts continue to entertain matters which arise under the SARFAESI Act and keep granting interim orders in favour of persons who are Non-Performing Assets. Further, the Supreme 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.

7. The Hon'ble Supreme Court, in the judgments referred above, held that a Writ Petition filed under Article 226 of the Const

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itution without exhausting the alternate remedy available to them under Section 17 of the SARFAESI Act is not maintainable. Following the ratio laid down by the Hon'ble Supreme Court, we are not inclined to entertain the Writ Petition. Accordingly, the Writ Petition is dismissed. No costs.
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