TaxTMI 
TaxTMI 
2017 (1) TMI 825
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....nancial assistance by way of Cash Credit and Term Loan from the respondents. The petitioner No.2 is Director of the company who guaranteed the loan of the borrower. Upon failure of repayment, the respondent Bank invoked the provisions of the SARFAESI Act, proceeding to issue notice dated 05th July, 2016 under Section 13(2) of the Act demanding the amount of Rs. 18,35,32,088.25 Ps. as due on the date of the notice with interest accrued. It appears that the petitioners filed objections to the said notice on 05th September, 2016. The Bank thereafter issued notice under Section 13(4) on 08th September, 2016. 4. Assailing the impugned notices and the impugned action of the Bank, learned senior advocate Mr.Kamal Trivedi with la Mr.Vishwas Shah for the petitioners submitted that the Bank proceeded to issue notice under Section 13(4) without complying with the mandatory requirement of sub-section (3A) of Section 13 of the Act. According to him, decision on the objections was not communicated. He submitted that under sub-section (2) of Section 13 it was incumbent upon the Bank to serve 60 days notice before proceeding to take measures under Section 13(4). He submitted that when there was....
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....and the objections ought to have been dealt with by the authorised officer. For emphasising the proposition that only the authorised officer could have dealt with, decision of the Kerala High Court in Bobby Sabestian Vs Authorised Officer being Writ Petition (C) No.2372 of 2013 decided on 11th April, 2014 as well as the decision of the Andhra Pradesh High Court in Sampoorna Battu Vs ICIC Bank being Writ Petition No.28734 of 2010 decided on 16th February, 2012 were cited. 4.4 On the other hand, learned advocate Mr.Sandeep Bhatt for the respondents relied on contentions and averments in the affidavit-in-reply and contended that this Court may not entertain the present petition. 5. Proceeding to consider the contorversy and the issue raised, challenge to the notice under Section 13(4) of the SARFAESI Act must terminate at this stage in view of the stand taken by the respondents in their affidavit-in-reply. The respondent Bank has stated that it has sought to withdraw notice under Section 13(4), averring and stating as under on oath. "... the Petitioners had given their objection/ representation through their advocate on 05.09.2016 by way of RPAD, to the 13(2) notice dated 08.....
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....letter dated 10th September, 2016 which was also served on the petitioners as per the endorsement and seal of acceptance of respondent No.1 sought to be relied on (Page 91) and further that the same was also served upon the advocate by Registered Post A.D. On 13th September, 2016. It was stated that without admititng the contentions of the petitioners and without going into the controversy, it was withdrawing notice dated 08th September, 2016 issued under Section 13(4) of the Act, it was further stated to request the Court to permit the respondents to issue fresh notice for taking possession. 5.2 In the aforesaid view, the prayer against notice under Section 13(4) and to set aside the same does not survive as the Bank woudl be issuing fresh notice as stated by it. Now, there is no gainsaying that the stage obtained in the proceedings under the SARFAESI Act is one where the petitioners would have available a statutory alternative remedy of preferring appeal before the Debt Recovery Tribunal under Section 17 of the SARFAESI Act, 2002, and raising all the contentions in the appeal. There is no gainsaying that the said remedy is efficacious remedy and it would be possible to lead ev....
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....gislatures 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 redressal of the grievance of any aggrieved person. Therefore, in all such cases, 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." (Para 17) 6. Adverting to the submission of learned senior counsel about the aspect that rejection of objections of the petitioners was through advocate and not by the authorised officer himself which was not permissible in law. The similar contention was dealt with by the Division Bench in Pareshbhai Parbatbhai Kothiya Vs Authorised Officer, HDFC Bank Limited being Letters Patent Appeal No.194 of 2016 decided on 29th March, 2016 which arose from the decision dated 18th February, 2016 in Special Civil Application No.18757 of 2015, in which the Court has rejected such contention of the said advocate-appellant as per observations in paragraphs 6.1, 6.2 and 6.3 of the order. The Division Bench noted the contention in paragraph 2 of the ....
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....ction under section 13(3A) of SARFAESI Act, before measures were taken under section 13(4) of SARFAESI Act. At the same time, it is not in dispute that the respondent-Bank has taken measures under section 13(4) of SARFAESI Act, which is appealable under section 17 of SARFAESI Act. Even measures taken under section 13(4) of SARFAESI Act is in continuation of rejection of objection under section 13(3A) of SARFAESI Act. In that view of the matter, even correctness of the order passed under section 13(3A) of SARFAESI Act also can be canvassed by filing appeal under section 17 of SARFAESI Act, after measures were taken under section 13(4) of SARFAESI Act." (Para 4) "In view of remedy provided under section 17 of SARFAESI Act, we deem appropriate to dispose of the appeal permitting the appellant- petitioner to pursue remedy available under section 17 of SARFAESI Act. If correctness of the order passed under section 13(3A) of SARFAESI Act is canvassed before the Appellate Authority, it is open for the Appellate Authority to consider such objections independently uninfluenced by the impugned order passed by the learned Single Judge. Subject to the above clarification and observation ....