TaxTMI 
TaxTMI 
2016 (11) TMI 840
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....The third respondent-the Yes bank appears to have granted credit facility in May, 2014 to the extent of Rs. 36 lakhs to the petitioner Nos. 1 to 4 herein. Against the said loan, the second respondent mortgaged commercial shop bearing No. 3/2267 situated at Pooja Apartment, Balabhai Street, Opp. Salabatpura police station, Surat. As the petitioners defaulted in payment of the loan amount, the third respondent bank invoking provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, issued notice dated 18.06.2015 under section 13(2) of the Act. Thereafter, notice under section 13(4) of the Act was also issued on 29.04.2016. As the petitioners failed to deliver the possession of the m....
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....09) 8 SCC 366], the Apex Court held that remedy by way of appeal under Section 17 is available not only upto the stage referable to Section 13(4), but even in respect of measures taken post-13(4) stage. In the present case, the stage at which the petitioner is beset with, is such stage. The petitioner is aggrieved person for the purpose of Section 17 of the Act. 5.1 Thus the petitioner has remedy of preferring an appeal under section 17 of the SARFAESI Act before the Debt Recovery Tribunal. In Kanaiyalal Lalchand Sachdev Vs State of Maharashtra [(2011) 2 SCC 782], the Apex Court in paragraphs Nos. 21 and 22 has observed as under, 21. In Indian Overseas Bank & Anr. Vs. Ashok Saw Mill, the main question which fell for determination was ....
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....made on behalf of the appellants that the DRT had no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under Section 13(4) of the Act. On the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of Section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the DRT." (Emphasis supplied by us) 22.We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4), and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act i....
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....h 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 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 r....
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....32,281/- [Rupees three crore fifty lac thirty two thousand two hundred eighty one only] is to be recovered by the bank. If the petitioner is to enjoy the interim relief, it must deposit the aforesaid amount with the bank subject to further orders of this Court, failing which the bank should be at liberty to take possession, but subject to further orders of this Court. 4. Hence, by ad-interim order, it is directed that there shall be stay against execution of the order of the Ld. Magistrate under section 14 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, on condition that the petitioner deposits the amount of Rs. 3,50,32,281/- [Rupees three crore fifty lac thirty two thous....
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....) of Sec.13 of the SARFAESI Act, and therefore, an appeal u/Sec.17 of the said Act against such measures is maintainable, if the action is against the Act or Rules framed thereunder. In this background, we are of the view that it was not open to the Debt Recovery Tribunal to reject the appeal u/Sec.17 of the Act on the ground that it was premature or not maintainable." 5.4. The division bench of this court in Sonali Sunil Bhanushali vs. Authorised Officer HDFC Bank being LPA No. 395 of 2016 decided on 6.5.2016 after surveying the several decisions including the above referred decisions, has upheld the view that the aggrieved party has to first avail the remedy of appeal under section 17 of the Act by going to the Tribunal instead straigh....