ORDER : 1. By this application under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “(a) Be pleased to quashed and set aside the order dated 9.9.2002 passed by the Ld. Additional Sr. Civil Judge, Surat in CRMA/2700/2022 and intimation dated 17.11.2022 issued by Court Commissioner, Surat u/s 14 of the SARFAESI Act in the interest of justice. (b) Pending admission, hearing and final disposal of this petition stay the implementation and operation of the order dated 9.9.2022 passed by the Ld. Additional Sr. Civil Judge, Surat in CRMA/2700/2022 and intimation dated 17.11.2022 issued by Court Commissioner, Surat u/s 14 of the SARFAESI Act in the interest of justice. (c) Grant such other and further relief as thought fit in the interest of justice.” 2. The petitioner herein has challenged the order passed under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) by referring this petition. 3. It is the case of the petitioner that the respondent Union Bank of India sanctioned the Home Loan of Rs. 24 Lakhs to purchase the residential premises in the year 2012. It appears that the petitioner has committed default in payment of the outstanding dues of the respondent No. 3-Bank and therefore the respondent-Bank has initiated action under the provisions of the SARFAESI Act by issuing notice under section 13(2) thereof and thereafter has taken action under sub section 4 of the Section 13 of the SARFAESI Act. It appears that the respondent-Bank thereafter preferred application No. 2700 of 2022 before the Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat for getting assistance under Section 14 of the SARFAESI Act to acquire the physical possession of the mortgaged property invoking the provision of Section 13(4) of the SARFAESI Act. The respondent No. 1-Additional Chief Judicial Magistrate, Surat by the impugned judgment and order dated 09.09.2022 has allowed the application filed by the respondent-Bank. 3.1 Learned advocate Ms. Kruti Shah with learned advocate Mr. Yogesh Kanade for the petitioner submitted that in the impugned order the respondent No. 1-Additional Senior Civil Judge and Additional Chief Metropolitan Magistrate, Surat has not taken into consideration the provisions of Section 14 of the SARFAESI Act. 3.1 Learned advocate Ms. Kruti Shah with learned advocate Mr. Yogesh Kanade for the petitioner submitted that in the impugned order the respondent No. 1-Additional Senior Civil Judge and Additional Chief Metropolitan Magistrate, Surat has not taken into consideration the provisions of Section 14 of the SARFAESI Act. It was submitted that though the respondent had ordered to take the possession of the mortgaged residential property of the petitioner on 04.12.2022, the same was postponed for 8 days. 3.2 It was submitted that the petitioner therefore has no efficacious remedy though it has alternative remedy under Section 17 of the SARFAESI Act. It was submitted on merits that the petitioners have never been served with the notice under Section 13(2) of the SARFAESI Act by the respondent-Bank and the impugned order and intimation dated 17.11.2022 for taking possession on 04.12.2022 is only served on the last moment and the copy of the same was also faint or illegible. It was submitted that the respondent-Bank had also not complied with the provisions of Section 14 of the SARFAESI Act as the respondent-Bank failed to disclose before the Magistrate that the proper procedure was followed for the purpose of service of the demand notice as well as the action taken under the provisions of Section 13(4) of the SARFAESI Act. It is further submitted that the Court below has not recorded its satisfaction to pass the impugned order while allowing the application under Section 14 of the SARFAESI Act. 3.3 Learned advocate for the petitioner placed reliance on the decision of the Apex Court in the case of Standard Chartered Bank vs. V. Noble Kumar, (2013) 9 SCC 620 wherein the Apex Court has held that the satisfaction of the Magistrate contemplated under second proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertion made in such an affidavit but not the legal niceties of the transaction. It was therefore submitted that in the impugned order the Court below has failed to examine the factual correctness of the assertion made in the affidavit filed on behalf of the respondent-Bank. It was therefore submitted that in the impugned order the Court below has failed to examine the factual correctness of the assertion made in the affidavit filed on behalf of the respondent-Bank. Further reliance was placed on the order of this Court in case of Chunilal Meghjibhai Devani vs. Authorised Officer dated 30.07.2018 in Special Civil Application No. 11516 of 2018 to submit that this Court relying upon the decision of Standard Chartered Bank (Supra) held that the District Magistrate had not satisfied himself with the contents of the affidavit as required under Section 14 of the SARFAESI Act and accordingly the said petition was allowed. 3.4 It was submitted that in the facts of the present case also the Court below failed to record the satisfaction with regard to the contents of the affidavit of the respondent-Bank and therefore this petition is required to be allowed. 3.5 Learned advocate for the petitioner further submitted that the petitioners have continued to make the payment of the outstanding dues of the respondent-Bank and that the respondent-Bank should be restrained from taking the possession of the residential property of the petitioner as the petitioner is ready and willing to pay a reasonable amount at present which may be specified by this Court to get the protection from taking the possession of the residential property of the petitioner. 4. Having heard the submission made on behalf of the petitioner, this Court is not inclined to entertain this petition on ground of alternative and efficacious remedy available as per Section 17 of the SARFAESI Act. 5. The Apex Court in the case of Phoenix Arc Private Limited vs. Vishwa Bharati Vidhya Mandir, AIR 2022 (0) AIJEL-SC 68207 wherein the Apex Court has deprecated the practice of entertaining the petition under Article 226 of the Constitution of India when alternative efficacious remedy is available as under: “7.1 It is the case on behalf of the appellant that the writ petitions against the communication dated 13.08.2015 proposing to take further action under Section 13(4) of the SARFAESI Act and that too against a private Assets Reconstructing Company (ARC) shall not be maintainable. It is also the case on behalf of the appellant that assuming that the communication dated 13.08.2015 can be said to be a notice under Section 13(4) of the SARFAESI Act, in view of the alternative statutory remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. 7.2 While considering the issue regarding the maintainability of and/or entertainability of the writ petitions by the High Court in the instant case, a few decisions of this Court relied upon by the learned Senior Advocate appearing on behalf of the appellant-ARC are required to be referred to. 7.3 In the case of Satyawati Tondon and Others (supra), it was observed and held by this Court that the remedies available to an aggrieved person against the action taken under section 13(4) or Section 14 of the SARFAESI Act, by way of appeal under Section 17, can be said to be both expeditious and effective. On maintainability of or entertainability of a writ petition under Article 226 of the Constitution of India, in a case where the effective remedy is available to the aggrieved person, it is observed and held in the said decision in paragraphs 43 to 46 as under: “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. 44. 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. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. 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. 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 vs. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1 and Harbanslal Sahnia vs. Indian Oil Corporation Ltd. (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.” 7.4 In the case of City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168 , it was observed by this Court in paragraph 30 that the Court while exercising its jurisdiction under Article 226 is duty bound to consider whether..........(c) the petitioner has any alternative or effective remedy for the resolution of the dispute.” 7.5 In the case of Kanaiyalal Lalchand Sachdev and Others (supra) after referring to the earlier decisions of this Court in the cases of Sadhana Lodh vs. National Insurance Co. Ltd. and Another, (2003) 3 SCC 524 , Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 and State Bank of India vs. Allied Chemical Laboratories and Another, (2006) 9 SCC 252 while upholding the order passed by the High Court dismissing the writ petition on the ground that an efficacious remedy is available under Section 17 of the SARFAESI Act, it was observed that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. 7.6 Similar view has been expressed by this Court in subsequent decisions in the case of General Manager, Sri Siddeshwara Cooperative Bank Limited and Another (supra) as well as in the case of Agarwal Tracom Private Limited (supra). 8. Applying the law laid down by this court in the aforesaid decisions, it is required to be considered whether, in the facts and circumstances of the case, the High Court is justified in entertaining the writ petitions against the communication dated 13.08.2015 and to pass the ex-parte ad interim order virtually stalling/restricting the proceedings under the SARFAESI Act by the creditor. 12. 12. Even otherwise, it is required to be noted that a writ petition against the private financial institution-ARC-appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers. 13. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 226 of the Constitution, this Court may not interfere with the interim/interlocutory orders is concerned, the decision of this Court in the case of Mathew K.C. (supra) is required to be referred to. 13.1 In the case of Mathew K.C. (supra) after referring to and/or considering the decision of this Court in the case of Chhabil Dass Agarwal (supra), it was observed and held in paragraph 5 as under: “5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT vs. Chhabil Dass Agarwal, (2014) 1 SCC 603 , as follows: (SCC p. 611, Para 15) “15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal vs. Supt. of Taxes, AIR 1964 SC 1419 , Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 13.2 Applying the law laid down by this Court in the case of Mathew K.C. (supra) to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the Court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13.08.2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs. 1 crore only (in all Rs. 3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs. 117 crores. The ad-interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of Court. It appears that the High Court has initially granted an ex-parte ad-interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed.” 6. In view of the above settled legal position this petition is not entertained. Hence, the present petition is dismissed without entering into the merits of the petition with a liberty to the petitioner to approach and avail alternative efficacious remedy under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.