TaxTMI 
TaxTMI 
2010 (9) TMI 1244
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....of the SARFAESI Act to the Petitioner on 05.07.2004. According to the Petitioner, since she sustained loss in her business and that she could not repay the loan to the Respondent bank, she constructed six rooms in her residential property, part of which has been mortgaged to the Respondent/bank. According to the Petitioner, she has been letting the rooms to third parties by charging ₹ 500/- per room per day and earning income out of it. While so, on 16.09.2004, the Respondent bank locked the six rooms and took physical possession of the six rooms constructed by the Petitioner, which was used by her as guest house. On the same day, possession notice was published in the newspaper. The Petitioner sent a letter dated 28.09.2004 to the Respondent offering to pay ₹ 30 lakhs towards full and final settlement, but that was negatived by the bank on 09.10.2004. Thereafter, by letter dated 22.02.2005, she increased the offer to ₹ 35 lakhs, which was also declined by the bank on 01.03.2005. Thereafter, the Petitioner further increased the offer to ₹ 36 lakhs and informed the same to the Respondent bank by letter dated 01.03.2005 which was also not accepted by the bank.....
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....en filed by the Petitioner under Section 17 of the Act within 45 days from the date of receipt of the possession notice before the Debt Recovery Tribunal, the writ petition filed as such is not maintainable. The bank would further contend that pending the mortgage with the Respondent bank and after issuance of possession notice issued under Section 13(4) of the SARFAESI Act, the Petitioner has not chosen to challenge the same, hence, the present writ petition is not Maintainable. The benefits of the OTS Scheme introduced by the bank is not applicable to the Petitioner as she has violated the terms of the mortgage by transferring the secured asset in the name of her son thereby created encumbrances over the property with an intention to defeat the rights of the bank from recovering the amount. As per Clause 1.7 of the SBI OTS-SME 2010 Scheme, "Cases of fraud, malfeasance and wilful default will not be eligible for OTS Scheme". The bank also contended that apart from the above loan, the Petitioner availed cash credit facility to the tune of ₹ 20 lakhs and two mortgage loan to the tune of ₹ 20 lakhs, aggregating in all ₹ 40 lakhs from the Respondent/bank. S....
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....the bank. On 04.07.2006, the bank directed the Petitioner to increase the offer and immediately she increased it to ₹ 45 lakhs and also offered to close the debt with C.I.T. Nagar Branch and close the personal loan accounts on 09.10.2006. Finally, after a period of one year, on 20.03.2007, she agreed to pay ₹ 44 lakhs towards all the accounts. This was also ultimately rejected by the bank on 27.09.2007 and directed to make arrangement to liquidate the dues without any further loss of time. The bank also sent a telegram on 22.11.2007 directing the Petitioner to close all the accounts. The Petitioner has not challenged the orders of rejection of her proposal to pay or deposit the amount in one lump sum before the competent forum namely Debts Recovery Tribunal. After a period of three years, now the Petitioner has taken up the whole issue on the basis of a communication dated 18.03.2010 received from the Respondents intimating her about the one time settlement offer introduced by the bank. Even for this, the Petitioner would contend that she is willing to take up the offer, but she has not paid any amount towards the scheme, but only sent a letter stating that she is ready....
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....the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High 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 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. 18. While expressing the aforesaid view, we are conscious that the powers conferre....
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.... decision of the Supreme Court reported in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Anr. (2010) 4 SCC 7) : (AIR 2010 SC 2239) wherein in Para Nos. 31 and 32, it was held as follows: 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a goby by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the Appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum. 9. In the light of the above decision of the Honourable Supreme Court, the writ p....