R. K. Behuria, A Proprietorship concerned, Represented through its Proprietor Mr. Ramesh Kumar Behuria v. Collector-cum-District Magistrate, Khordha
2015-07-16
B.RATH, D.H.WAGHELA
body2015
DigiLaw.ai
ORDER Per: BISWANATH RATH, J. 16.07.2015.Heard Mr. Mukherji, learned Advocate for the petitioner and Mr. Subrat Mishra, learned Counsel appearing for the Bank. In this writ petition, the petitioner has assailed the impugned order dated 13.3.2015 appearing at Annexure-6 the order passed by the District Magistrate under Section 14 of the SARFAESI Act, 2002. During course of argument, learned Counsel for the Bank raised the question of jurisdiction of this Court in such matter and by bringing to the notice of this Court a decision of the Hon’ble Apex Court in the case of Standard Charted Bank v. V. Noble Kumar and others, reported in (2013) 9 SCC 620 and further by drawing our attention to paragraph 37 of the said decision, learned Counsel for the Bank submits that this Court has no jurisdiction in such matter in view of the clear alternative remedy available under the Statute. We have perused the decision (supra) cited at the Bar. Paragraph 37 of the said judgment reads as follows : “37. In this connection, it is material to refer to the judgment in Mardia Chemicals Ltd. V. Union of India, (2004) Sec.311, wherein the Court was concerned with the legality and validity of the SARFAESI Act. The Court held that the Act to be valid except Section 17 (2) thereof as it then stood. In paras 59, 62 and 76 of the judgment the Court in terms held that in remedy under Section 17 of the Act was essentially like filing a suit in a Civil Court though it was called an appeal. It is also relevant to note that in the ultimate conclusions in para 80 of the judgment this Court held in sub-para (2) thereof as follows: “80 (2). As already discussed earlier, on measures having been taken under sub-Section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debts Recovery Tribunal.” The grievance of the respondent that it will be left with no remedy is, therefore, misplaced. As held by a Bench of three Judges in Mardia Chemicals, it would be open to the borrower to file an appeal under Section 17 any time after measures are taken under Section 13 (4) and before the date of sale/auction of the property.
As held by a Bench of three Judges in Mardia Chemicals, it would be open to the borrower to file an appeal under Section 17 any time after measures are taken under Section 13 (4) and before the date of sale/auction of the property. The same would apply if the secured creditor resorts to Section 14 and takes possession of the property with the help of officer appointed by the Magistrate. In view of the Apex Court Judgment and in view of the fact that there is clear statutory remedy available to the petitioner to assail the impugned order by way of an appeal under Section 17 of the SARFAESI Act, we are not inclined to entertain this petition. The petition has no merit and the same stands dismissed. Petition dismissed.