2022 (5) TMI 1079

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.....168/2022) under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity,  "SARFAESI Act") with a further direction to the respondent to grant them benefit of moratorium. With regard to maintainability of the writ petition despite availability of an efficacious and alternative remedy under the provisions of the SARFAESI Act, learned counsel for the petitioner, relying upon a judgment of Hon'ble Apex Court of India in case of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Company Limited and Others; (2014) 6 SCC 1, submitted that remedy of appeal is not available to them against an order passed under Section 14. He submitted that in view of ....

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....me Court of India in the cases of M.D. Frozen Foods Exports Pvt. Ltd. & Ors. Vs. Hero Fincorp Ltd. in Civil Appeal No.15147/2017 dated 21.09.2017 & Indiabulls Housing Finance Limited Vs. M/s. Deccan Chronicle Holdings Limited & Ors. in Civil Appeal No.18/2018 dated 23.02.2018, objection of the petitioner as to maintainability of proceedings under SARFAESI Act in view of arbitration clause, is not sustainable. He, therefore, prayed for dismissal of the writ petition. Heard. Considered. In case of M/s Balaji Enterprises and other connected matters (supra) involving identical controversy, a co-ordinate Bench of this Court has dismissed the writ petitions on account of availability of remedy to the petitioners under the SARFAESI Act. It was h....

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.... availability of an alternative statutory remedy is no more res integra and stands decided against the petitioner. Reliance placed by learned counsel for the petitioners on the judgment of Hon'ble Apex Court of India in case of Harshad Govardhan Sondagar (supra) is of no help to him having been rendered in different facts and circumstances. In that case, the Hon'ble Apex Court of India was considering rights of the petitioner, a lessee, in the mortgaged property in the light of the provisions of Sections 105 & 111 of the Transfer of Property Act, 1882. In a case where the question arose as to whether in view of an arbitration agreement between the parties, the creditor could resort to the provisions of the SARFAESI Act, the Hon'ble Apex C....

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....e Limited (supra) wherein, in an appeal preferred against the judgment of the Hon'ble High Court of Andhra Pradesh holding that where Section 9 of the Act of 1996 was invoked by the creditor, initiation of proceedings under the SARFAESI Act was impermissible, the Apex Court, after appreciating Sections 35 & 37 of the SARFAESI Act, held that arbitration proceedings and proceedings under the SARFAESI Act can be resorted to simultaneously and relied upon the judgment of M.D. Frozen Foods Exports Pvt. Ltd. (supra) in this regard. In case of SBP & Co. (supra) as also in case of Vidya Drolia (supra), the Apex Court of India was dealing with remedy before a Civil Court vis-a-vis availability of arbitration clause and in none of the cases provisio....