JUDGMENT : S.Manikumar, J. Challenge in this writ appeal is to the correctness of judgment in W.P.(C) No.4858 of 2020 dated 20.02.2020, by which the writ court declined to quash Exts.P3 to P5 and the proceedings issued under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Exts.P3, P4 and P5 notices are extracted hereunder: “State Bank of India Resmec, Kottarakkara Branch Ref.No.2 Date.30.07.2019 NOTICE OF PROPOSED ACTION UNDER SARFAESI ACT 2002 Ordinary/Registered AD To • (Borrower) • (Guarantor) Sri.Anil Kumar N.V. Nambadiazhikathu Veedu Pidavorr P.O., Pathanapuram – 691625 Kollam Phn: 9847831966 Dear Sir, Borrower/Unit's Name Mr.Anil Kumar N.V. Loan Account No(s) 67351721888 Purpose Contractor Limit Rs.40,00,000/- Outstanding(s) Rs.40,90,530/- INTIMATION OF ACTION PROPOSED UNDER SARFAESI ACT 2002/REVENUE RECOVERY At your request, you No.1 above had been granted credit facility/ies by way of financial assistance to the tune of Rs.40,00,000/-on 03/02/2016 as facility/working capital facility/Term Loan facility for the purpose of running business (business/purchase of machinery/working capital/Housing Loan/Mortgage Loan etc.) against which the documents had been executed by you. No.2 of you as guarantor had guaranteed the credit facility granted to the No.1 of you above. (2) You have availed the financial assistance with an undertaking for dues repayment of the said financial assistance along with interest, in terms of the said agreement(s)/document(s). (3) For the purposes of securing the facilities you No.1/No.2 have also created mortgage by way of deposit of title deeds/Registered mortgages creating security interest in favor of the Bank in respect of the following property(ies) mentioned below: (4) Though you had undertaken to repay the said financial assistance in terms of the documents executed by you, you had failed to make payments as agreed by you. On the contrary, the operation and the conduct of the above said financial assistance had become irregular and you are liable to pay an amount of Rs.40,90,530/-to regularize the account(s). (5) You are hereby called upon to regularize the account(s) on or before 15.08.2019. If you fall to regularize the account, the bank will initiate action U/s 13(2) of the SARFAESI ACT/REVENEU RECOVERY, and also initiate all or any of the rights detailed under sub-Section (4) of Section 13 of the SARFAESI ACT/REVENEU RECOVERY and under other applicable provisions of SARFAESI ACT/REVENEU RECOVERY. If you fall to regularize the account, the bank will initiate action U/s 13(2) of the SARFAESI ACT/REVENEU RECOVERY, and also initiate all or any of the rights detailed under sub-Section (4) of Section 13 of the SARFAESI ACT/REVENEU RECOVERY and under other applicable provisions of SARFAESI ACT/REVENEU RECOVERY. Yours faithfully, For State Bank of India Sd/- CHIEF MANAGER” *************** “State Bank of India RASMEC KOTTARAKARA [Rule – 8(1)] POSSESSION NOTICE (for immovable property) Whereas, the undersigned being the Authorised Officer of the State Bank of India under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 and in exercise of powers conferred under section 13(12) read with Rule 3 of the Security Interest (Enforcement) Rules 2002, issued a Demand Notice dated 03.08.2019 calling upon the borrower Sri.Anilkumar N.V. (S/o Venugopalan), residing at Nambadiazhikathu Veedu, Pidavoor PO, Pathanapuram, Kollam District, PIN 689695 to repay the amount mentioned in the notice being Rs.41,71,585/-and interest from 03.08.2019, (Rupees forty one lakhs seventy one thousand five hundred and eighty five only) within 60 days from the date of receipt of the said notice. The borrower having failed to repay the amount, notice is hereby given to the Borrower/Guarantor and the public in general that the undersigned has taken possession of the property described herein below in exercise of powers conferred on him under Section 13(4) of the said Act read with Rule 8 of the said rules on this 06th November, 2019. The Borrower/Guarantor in particular and the public in general are hereby cautioned not to deal with the property and any dealings with the property will be subject to the charge of the State Bank of India for an amount of Rs.41,71,585/-(Rupees forty one lakhs seventy one thousand five hundred and eighty five only) and further interest from 03.08.2019, costs etc thereon. The borrower's attention is invited to provisions of sub-section (8) of Section 13 of the Act, in respect of time available to redeem the secured asset(s). Description of the Immovable property Property owned by: Sri.Anilkumar N.V. (S/o Venugopalan), residing at Nambadiazhikathu Veedu, Pidavoor PO, Pathanapuram, Kollam District, PIN 689695 All that part and parcel of the property extending 18.21 ares of land with building in sy. no.10/11 in block no.12, TP no.5251 of Pidavoor Village, Pathanapuram Taluk within the registration sub district Pathanapuram and district Kollam. Description of the Immovable property Property owned by: Sri.Anilkumar N.V. (S/o Venugopalan), residing at Nambadiazhikathu Veedu, Pidavoor PO, Pathanapuram, Kollam District, PIN 689695 All that part and parcel of the property extending 18.21 ares of land with building in sy. no.10/11 in block no.12, TP no.5251 of Pidavoor Village, Pathanapuram Taluk within the registration sub district Pathanapuram and district Kollam. Bounded: On the North by Property of K.K.John On the South by Property of Samuel On the East by PWD Road On the West by Property of Samuel Sd/- (AUTHORISED OFFICER) CHIEF MANAGER STATE BANK OF INDIA” ***************** “BEFORE THE HONOURABLE COURT OF CHIEF JUDICIAL MAGISTRATE, KOLLAM In M.C.No.34/2020 To Counter petitioners Anilkumar N.V. S/o Venugopalan, Nambadiazhikathu Veedu, Pidavoor PO, Pathanapuram, Kollam-689 695. Petitioner The Authorised Officer, Chief Manager, State Bank of India, RASMEC, Kottarakkara, Lotus Tower, Pulamon, Kottarakkara, Kollam–691531. Notice issued by the Advocate Commissioner Sri.P.V.Dileep Kumar, Advocate, Kollam appointed by this Hon’ble Court as per Order On 14-01-2020 in M.C.No.34/2020 to the said parties as follows: Whereas I have been appointed as the advocate commissioner in the above M.C.No.34/2020 by the Hon'ble Chief Judicial Magistrate Court, Kollam. As per the said order, the Hon'ble Court empowered me to take over the possession of the secured assets with police assistance if necessary and hand over possession of the same to the petitioner consisting of “All that part and parcel of property consisting of 18.21 Ares (45 cents) of land with building standing thereon and all other things attached thereto comprised in Re-Sy.No.10/11 in Block No.12 of Pidavoor Village in Pathanapuram Taluk, Kollam District originally belonged to Sri.Anilkumar N.V., S/o Venugopalan as per Settlement Deed No.977/2000 dated 27-04-2000 of Pathanapuram SRO.” Please take notice that the undersigned shall be present in the above said schedule of secured assets on 28-02-2020 at 12.30 PM to take over the possession of the above said properties with everything therein and hand over the same to the secured creditor bank. So the counter petitioner is hereby called upon to vacate the secured assets to the undersigned. Dated this the 3rd day of February, 2020 Sd/- Advocate Commissioner P.V. Dileep Kumar” 2. So the counter petitioner is hereby called upon to vacate the secured assets to the undersigned. Dated this the 3rd day of February, 2020 Sd/- Advocate Commissioner P.V. Dileep Kumar” 2. Appellant has also sought for a direction to declare that the respondents have absolutely no jurisdiction to invoke the provisions of the SARFAESI Act, 2002 and the Rules framed thereunder and the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004, since it is not a non performing asset as per the Reserve Bank of India Act. 3. Short facts leading to the appeal are as under: Appellant, who is a contractor, availed credit facility to the tune of Rs.40,00,000/-on 3.2.2016 from the respondents by mortgaging 18.21 Ares of property, comprised in Re Sy.No.10/11 in Block No.12 in Thandaper No.5251 of Pidavoor Village towards the loan. Respondents have sanctioned the loan and the appellant has executed relevant documents as directed by the respondents. The appellant was making remittances in lump sum or by instalments to the respondents without fail. The appellant was suffering from Cardiac problem and a surgery was performed for ICD Implantation. At the same time, wife of the appellant met with an accident, which resulted in prolonged treatment. Because of the same, he could not remit the loan amount properly. Hence, respondents have issued Ext.P3 notice under Section 13(2) of the SARFAESI Act, 2002 directing to pay Rs.40,90,530/-. Thereafter, the appellant prayed for granting sufficient time to remit the arrears amount, so as to enable him to continue the loan facility. 4. The respondents, without issuing any reply, initiated proceedings against the appellant under Section 13(4) of the SARFAESI Act, 2002 and took possession of the secured asset on 06.11.2019. Thereafter, the respondents have submitted application under Section 14 of the Act, 2002 before the learned Chief Judicial Magistrate, Kollam and accordingly, the Advocate Commissioner appointed in M.C.No.34 of 2020 has issued Ext.P5 notice to the appellant to take possession of the secured asset on 28.02.2020 at 12.30 PM. After issuing Exts.P3 and P4 notices, appellant remitted Rs.1,13,000/-and made other remittances to the respondents as per Ext.P6. In view of Ext.P6, the loan account of the appellant is not a non performing asset as per RBI guidelines and the respondents have absolutely no jurisdiction to forcibly take possession of the property, ignoring the provisions under the SARFAESI Act, 2002. After issuing Exts.P3 and P4 notices, appellant remitted Rs.1,13,000/-and made other remittances to the respondents as per Ext.P6. In view of Ext.P6, the loan account of the appellant is not a non performing asset as per RBI guidelines and the respondents have absolutely no jurisdiction to forcibly take possession of the property, ignoring the provisions under the SARFAESI Act, 2002. According to the appellant, the learned single Judge, without considering the evidence and law in proper perspective, dismissed the writ petition in limine. Hence, this writ appeal. 5. Adverting to the pleadings and submissions and after considering the decisions of the Hon'ble Supreme Court in Union Bank of India v. Satyawati Tondon reported in 2010 (8) SCC 110 and Authorised Officer, State Bank of Travancore and Another v. Mathew K.C. reported in 2018 (1) KLT 784 , writ court ordered thus: “2. Counsel for the Bank, who has put in appearance, submits that there is no chance of regularization of the account in view of default overdraw of the cash credit facility. In such circumstances, I am of the view that the court cannot entertain the writ petition under Article 226 of the Constitution of India, warranting any interference until and unless there are certain attenuating circumstances, pressing the action of the bank to be in violation of the procedure prescribed in the SARFAESI Act. With the aforementioned observation, the writ petition is dismissed.” 6. Heard learned counsel for the parties and perused the material available on record. 7. Material on record discloses that the Bank has initiated proceedings under Section 13(4) of the SARFAESI Act, 2002. Issue as to whether the bank has declared the account as non performing asset before initiated proceedings under the SARFAESI Act, 2002 and the Rules made thereunder, has to be adjudicated only before the tribunal. 8. Time and again, the Hon'ble Supreme Court has held that writ petitions should not be entertained as against proceedings initiated under the SARFAESI Act, 2002. Reference can be made to the following decisions: (i) In United Bank of India v. Satyawati Tondon and others [ (2010) 8 SCC 110 - AIR 2010 SC 3413 ], the High Court restrained further proceedings under Section 13(4) of the Act. Reference can be made to the following decisions: (i) In United Bank of India v. Satyawati Tondon and others [ (2010) 8 SCC 110 - AIR 2010 SC 3413 ], the High Court restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Honourable Apex Court observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available. “43. 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 a 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, the 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” (ii) In ICICI Bank Ltd. v. Umakanta Mohapatra and Others reported in 2018 (13) SCALE 724, the Hon'ble Supreme Court reaffirmed the legal position that High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act. (iii) In Authorised Officer, State Bank of Travancore and Another v. Mathew K.C. reported in (2018) 3 SCC 85 , the Hon'ble Supreme Court observed thus: “15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:- “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. 17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. 18. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. 18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450 , observing :- “32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” (iv) In Civil Appeal Nos.10243-10250 of 2018 [ICICI Bank Ltd. v. Umakanta Mohapatra and Others], by order dated 5.10.2018, the Honourable Apex Court reaffirmed the legal position that High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act." 9. In the light of the above decisions, we find no error in the impugned judgment. That apart, it is the case of the appellant that he was unable to pay the court fee prescribed under Rule 13 of the Security Interest (Enforcement) Rules, 2002 hence constrained to file writ petition. Rule 13 of the Security Interest (Enforcement) Rules, 2002 reads thus: “13. That apart, it is the case of the appellant that he was unable to pay the court fee prescribed under Rule 13 of the Security Interest (Enforcement) Rules, 2002 hence constrained to file writ petition. Rule 13 of the Security Interest (Enforcement) Rules, 2002 reads thus: “13. Fees for applications and appeals under section 17 and 18 of the Act.- (1) Every application under sub section (1) of section 17 or an appeal to the Appellate Tribunal under sub-section (1) of section 18 shall be accompanied by a fee provided in the sub-rule (2) and such fee may be remitted through a crossed demand draft drawn on a bank or Indian Postal Order in favour of the Registrar of the Tribunal or the Court as the case may be, payable at the place where the Tribunal or the Court is situated. (2) The amount of fee payable shall be as follows: No. Nature of application Amount of Fee payable 1 Application to a Debt Recovery Tribunal under sub-section (1) of section 17 against any of the measures referred to in sub-section (4) of section 13 (a) Where the applicant is a borrower and the amount of debt due is less than Rs.10 lakhs Rs. 500 for every Rs.1 lakh or part thereof (b) Where the applicant is a borrower and the amount of debt due is Rs. 10 lakhs and above Rs. 5,000 + Rs. 250 for every Rs. 1 lakh or part thereof in excess of Rs. 10 lakhs subject to a maximum of Rs. 1,00,000 (c) Where the applicant is an aggrieved party other than the borrower and where the amount of debt due is less than Rs.10 lakhs Rs. 125 for every Rupees One lakh or part thereof (d) Where the applicant is an aggrieved party other than the borrower and where the amount of debt due is Rs.10 lakhs and above Rs. 1,250 + Rs. 125 for every Rs. 1 lakh or part thereof in excess of Rs. 10 lakhs subject to a maximum of Rs. 50,000 (e) Any other application by any person Rs. 200 2 Appeal to the Appellate Authority against any order passed by the Debt Recovery Tribunal under section 17 Same fees as provided at clauses (a) to (e) of serial number 1 of this rule 10. 10 lakhs subject to a maximum of Rs. 50,000 (e) Any other application by any person Rs. 200 2 Appeal to the Appellate Authority against any order passed by the Debt Recovery Tribunal under section 17 Same fees as provided at clauses (a) to (e) of serial number 1 of this rule 10. Merely because, the appellant is not in a position to pay court fee, writ petition cannot be said to be an alternative remedy. Payment of fee for the applications under Sections 17 and 18 of the Act, as framed under the Security Interest (Enforcement) Rules, 2002, is mandatory. Such contention cannot be countenanced. In the light of the above discussion and decisions, instant writ appeal cannot be entertained. It is accordingly dismissed.