DATE OF JUDGEMENT
23 December 2021
The Hon'ble Mr. Justice M. Duraiswamy
The Hon'ble Mr. Justice J.Sathya Narayana Prasad
Petitioner- R. Ganesan
Respondent- M/s. ASREC (India) Limited
Exhausting the remedy available under Section 17 of SARFESI Act an essential pre-requisite to challenging SARFESI proceedings through a writ petition under Article 226 of the Indian Constitution.
1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories’ directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
1. Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, [may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken
The petitioner had filed a writ petition in the Madras High Court under Article 226 of the constitution challenging the order passed on 11.11.2021 by the Chief Judicial Magistrate of Tiruppur District.
This order was passed under Section 14 of the SARFAESI Act. It was requested that the order be quashed and respondent 1 be directed to deseal the premises described as Schedule B in the same order.
The petitioner, however, filed this writ petition without exhausting the remedy available under Section 17 of the SARFAESI Act.
Whether the Writ petition is maintainable if the remedy available under section 17 of SARFAESI Act is not exhausted?
The court rightly held that a writ petition cannot be entertained if any other available statutory remedy is not exhausted. Any aggrieved party should first exhaust the alternate remedy before filing a writ petition.
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