Writ Appeals Nos. 1682 & 1712 of 2020, High Court of Kerala at Ernakulam

W. A. Nos. 1682 & 1712 of 2020 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 WA NO. 1682 OF 2020 AGAINST THE JUDGMENT IN WP(C) 23097/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** - **1 GIRIJA BHASKARAN, AGED 55 YEARS BINUGIRI BHAVAN, K.G. FLOUR MILL ROAD, TEMPLE GATE P.O, THALASSERY, KANNUR-670 102** - **2 P. GOPALAKRISHNAN, ODUVIL HOUSE, PATTATHIL LANE, HOUSE NO. 51, CHEROOR, THRISSUR-680 008.** - **3 SHYAMALA NAIR, BUILDING NO. 45, SAT SWARUP SOCIETY, A WING, FLAT NO. 802, TILAK NAGAR, CHEMBUR, MUMBAI-400089** - **4 V.N. RAMACHANDRAN, SOPANAM HOUSE, P.O. PERAMANGALAM, THRISSUR-680 545** - **5 SASEENDRAN P.T, NAVANEETHAM, NEAR KSEB SUB STATION, P.O. CHEVAYUR, KOZHIKODE-673 017** - **6 U.S. SACHIDANANDAN, SANNIDHI, KSHB ROAD, THIRUVENKIDAM, GURUVAYUR-680 101** - **7 WG.CDR. P.V.ACHUTHAN, NO. 1619, 1ST CROSS, RAMESH ROAD, T. DASARAHALLI, BANGALORE-560 057** W. A. Nos. 1682 & 1712 of 2020 -2- - **8 ARUN K. MENON, VADAKKEMADOM,VALIYAKULANGARA P.O, MAVELIKKARA-690 104** - **9 VIJAYA RAGHAVAN KOMATH, ACHUTHAM P.O, MUNDAYAD, KANNUR-670 594** - **10 GEETHA DEVANAND, ACHUTHAM P.O, MUNDAYAD, KANNUR-670 594.** - **11 SADASHIVAN PILLAI,** - **G. SARASWATHY MANDIRAM, LEKSHMINAD, CUTCHERY, KOLLAM, KERALA-691 013.** - **12 DR. ANANTHAN K.R, THRIPRAYAT HOUSE,THIRUVAMBADI P.O, THRISSUR, KERALA-680 022** - **13 DR. THILAKAN T.C, DIL, MULANKUNNATHKAAVU P.O, THRISSUR-680 581** - **14 K.S. KESAVAPRASAD, KUTTAMKULANGARA HOUSE, P.O.CHOONDAL, CHAMMANTHATTA VILLAGE, PUTHUSSERY DESOM, THALAPPILLY THALUK, PIN-680 522** - **15 K.S. RAVIPRASAD, KUTTAMKULANGARA HOUSE, P.O. CHOONDAL, CHAMMANTHATTA VILLAGE, PUTHUSSERY DESOM, THALAPPILLY TALUK, PIN-680 522** - **16 LAL KANNOTTIL,** - **OPP. ASWINI HOSPITAL, OTTAPALAM-679 101, PALAKKAD DIST.** - **17 LALITHA JAYACHANDRAN, KRISHNA KRIPA,KUNNATH HOUSE, P.O. MUNDOOR, PORIYANI DESOM, PALGHAT 678 592.** - **18 SHYAM KUMAR NAIR,** - **CHAITHANYAM, PERINGILIPURAM, ENNAKKAD P.O, CHENGANOOR-689 624, REPRESENTED BY HIS POWER OF ATTORNEY, ARUN K. KRISHNAN, CHAITHANYAM, PERINGILIPURAM, ENNAKKAD P.O, CHENGANOOR-689 624** - **19 SAJI KUMAR KUZHIMANNIL VASUDEVAN PILLAI, NANDANAM HOUSE, KOIPURAM P.O, CHENGANNOOR,** W. A. Nos. 1682 & 1712 of 2020 -3- ## **PATHANAMTHITTA-689 531** - **20 ANNIE MATHEW, PULIKOTTIL HOUSE, P.O. PUNKUNNAM, TRISSUR DIST.680 002.** - **21 RAJEEVAN THAZHATHUVEETTIL, THAZHATHUVEETIL HOUSE, P.O.THALIPARAMBU VILLAGE, KANNUR-670 141** - **22 NADUVILETTIYAT GOVINDAN,** - **GEETHAM CHUNDA, P.O. MOTTAMMAL, KANNAPURAM DESOM, KANNUR-670 331.** - **23 AJITHA THARIYAN,** - **R.H. NO. 1/1/XIII, SHRI. SIDHI GANESH CHS, SECTOR-2E, AIROLI, NAVI MUMBAI-400 708** - **24 PRAMOD R,** - **NAYANAM, PUTHUKOD P.O, CHAVARA, KOLLAM-691 585** - **25 V.K. RAJU,** - **TC. 18/9(5), P.O. TIRUMALAI, TRIKKANNAPURAM DESOM, TRIVANDRUM-695 006** - **26 SHAJI U,** - **SOPANAM HOUSE, P.O. PERUMUDIYUR, PALAKKAD-679 303** **BY ADV RAHUL VENUGOPAL** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOUSING, 1ST FLOOR, NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 INSPECTOR GENERAL OF POLICE,(ECONOMIC OFFENCES WING)** - **VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 014** - **3 THE JOINT DIRECTOR, ENFORCEMENT DIRECTORATE, KOCHI ZONAL OFFICE,KANOOS CASTLE, MULLASSERY CANALROAD WEST, COCHIN-682 011** W. A. Nos. 1682 & 1712 of 2020 -4- - **4 REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCEITIES, RAJAJI NAGAR MARKET ROAD, STATUE, THYCAUD, THIRUVANANTHAPURAM, KERALA-695 001** - **5 THE RESERVE BANK OF INDIA, NEW CENTRAL OFFICE BUILDING, SHAHID BHAGAT SINGH RD, FORT, MUMBAI, MAHARASHTRA 400 001, REPRESENTED BY GENERAL MANAGER (OFFICER IN CHARGE), REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI682 018** - **6 INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA, ICAI BHAWAN, INDRAPRASHTA MARG, NEW DELHI-110 002, REPRESENTED BY ITS PRESIDENT.** - **7 REGISTRAR OF COMPANIES (ERNAKULAM) COMPANY LAW BHAWAN, BMC ROAD, THRIKKAKARA, KOCHI682 021.** - **8 M/S. MOHANDAS AND ASSOCIATES, CHARTERED ACCOUNTANTS, CHARTERED ACCOUNTANTS, DOOR NO. TC-XXIX/567, PALIYAM ROAD, TRISSUR-680 001, REPRESENTED BY ITS MANAGING PARTNER, MOHANDAS.** - **9 VALSAN PANIKAR, MALANA HOUSE, PERUMBADAPPU DESOM VILLAGE, PONNANI TALUK, MALAPPURAM DISTRICT-679 580, NOW RESIDING AT 19, NAKSHATHRA INN VILLA, THYCAD, CHITTATTUKARA VALAVU, ROAD, TRISSUR-680 104, MANAGING DIRECTOR, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD.** - **10 MUHAMMED VEETTILAYIL, VETTILAYIL HOUSE, PUNNAYOORKULAM VILLAGE,DESOM, CHAVAKKAD TALUK, CHAIRMAN, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD..** - **11 PADAYATTIL JACOB SIMON, PADAYATTIL HOUSE, PURANATTUKARA VILLAGE, DESOM, THRISSUR TALUK, DIRECTOR, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD..** W. A. Nos. 1682 & 1712 of 2020 -5- - **12 ULLAS T.P.** - **THACHAPPULLY HOUSE, ENGANDIYOOR VILLAGE, DESOM, CHAVAKKAD TALUK, FORMER DIRECTOR, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD.** - **13 HANEESH,** - **KANDRACHERY HOUSE, PUNNAYOORKULAM VILLAGE, DESOM, CHAVAKKAD TALUK, FORMER DIRECTOR, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD.** - **14 QAMARUL EID K.** - **KANAKOTH HOUSE, KADIKKADU VILLAGE, CHAVAKKAD TALUK, FORMER DIRECTOR, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD.** - **15 KRISHNAKUMAR PATTATHIL. JYOTHISH HOUSE, ERAVU DESOM, ERAVU VILLAGE, THRISSUR, FORMER CHAIRMAN, VASTHUHARA DEVELOPERS AND REAL ESTATE LTD.** - **16 M/S. VASTHUHARA DEVELOPERS AND REAL ESTATE LTD, DOOR NO. 31/25/1, FIRST FLOOR, THOMMANA HOUSE, PUNKUNNAM, GURUVAYUR-680 002, KERALA, REPRESENTED BY IT'S MANAGING DIRECTOR, VALSAN PANIKKAR.** - **17 M.K.ABDUL SALAM,** - **P.O. ETTUMANA,CHERPU, THRISSUR-680 711,FORMER PRESIDENT, THRISSUR DISTRICT CO-OPERATIVE BANK LIMITED.** - **18 THRIVIKRAMAN PILLAI,** - **PRASHANTHI, KAILASH NAGAR, POOVENI TEMPLE ROAD, KOLAZHY, PIN-680 010, FORMER MANAGER, THRISSUR DISTRICT CO-OPERATIVE BANK LTD.** - **19 THRISSUR DISTRICT CO-OPERATIVE BANK LTD, HEAD OFFICE, SAHAKARANA SATHABDHI MANDIRAM, KOVILAKATHUMPADAM, P.O. THIRUVAMPADI THRISSUR680022, REPRESENTED BY ITS CHEIF MANAGER.** **BY ADVS. SRI. P.GOPAL** **SMT. DHANUJA M S FOR APPELLANT; SRI. P C SASIDHARAN** W. A. Nos. 1682 & 1712 of 2020 -6- **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2022, ALONG WITH WA.1712/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. Nos. 1682 & 1712 of 2020 -7- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 WA NO. 1712 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 32515/2019 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/S:** - **1 SHINU K.V. AGED 45 YEARS KURUATH HOUSE, P.O.KANJANY,TRISSUR-680 612** - **2 C.BABU RAJENDRAN THERAYAMGOT HOUSE, CHEMMATHURE (PO) VATAKARA, KOZHIKODE-673 104** ## **BY ADV RAHUL VENUGOPAL** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOUSING ,1ST FLOOR, NORTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, RAJAJI NAGAR MARKET ROAD,STATUE, THYCAUD, THIRUVANANTHAPURAM,KERALA-695 001** - **3 THRISSUR DISTRICT CO-OPERATIVE BANK LIMITED, HEAD OFFICE, SAHAKARANA SATHABDHI MANDIRAM,KOVILAKATHUMPADAM, P.O THIRUVAMPADI THRISSUR-680 022, REPRESENTED BY ITS AUTHORISED OFFICER** W. A. Nos. 1682 & 1712 of 2020 -8- **4 M/S. VASTHUTHARA DEVELOPERS AND REAL ESTATE LTD., DOOR NO.31/25/1, FIRST FLOOR, THOMMANA HOUSE, C.ACHUTA MENON ROAD, SHRI KRISHNA TEMPLE, PUNKUNNAM, GURUVAYUR-680 002, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR, VALSAN PANIKKAR BY ADVS.** **SRI. P.GOPAL** **SMT. DHANUJA M S FOR APPELLANT;** **SRI. P C SASIDHARAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **16.09.2022, ALONG WITH WA.1682/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. Nos. 1682 & 1712 of 2020 -9- ## **J U D G M E N T** ## Shaji P. Chaly, J. Petitioners in W. P. (C) Nos. 23097 and 32515 of 2019 have filed the captioned writ appeals challenging the common judgment of the learned Single Judge dated 02.03.2020 whereby the following reliefs sought for by the petitioners were declined:- 2. Reliefs sought for in W. P. (C) No. 23097 of 2019 are as follows:- “i) Call for the records leading to Exhibit P5 and quash Exhibits P4 and P5 by issuing a writ of certiorari or any other appropriate writ order or direction; ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to take over and complete the construction work of the project, Vastuhara Vastugramam, at Guruvayoor and handover the same to the petitioners after obtaining completion certificate; iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 5[th] respondent to conduct a forensic audit of the accounts of the 16[th] respondent company; W. A. Nos. 1682 & 1712 of 2020 -10- iv) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 6 and 7 to take appropriate action against the 8[th] respondent, Statutory Auditor of the 16[th] respondent Company; v) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] and 3[rd] respondents to investigate the corporate fraud and money laundering committed by respondents 8 to 19 and to fix liability on them; vi) Issue a writ of mandamus or any other appropriate writ, order or direction directing 7[th] respondent to cancel the registration of the 16[th] respondent company and to initiate appropriate action against respondents 9 to 15, Directors and promoters; vii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 8 to 16 to deposit the monies illegally diverted by them before this Hon'ble court; viii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] and 5[th] respondents to initiate appropriate action against respondent 17 to 18 for colluding and conniving with respondents 8 to 16 in committing the corporate fraud and money laundering in total violation of Exhibits P30 and P31 and other master circulars of the 5[th] respondent; W. A. Nos. 1682 & 1712 of 2020 -11- ix) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to ensure that housing projects are completed in a time-bound manner as contemplated in RERA and home buyers are not defrauded; x) Appoint a court receiver for the project until the disposal of this writ petition.” ## 3. Reliefs sought for in W. P. (C) No. 32515 of 2019 are as follows:- “i) Call for the records leading to Exhibit P7 and quash Exhibits P6 and P7 by issuing a writ of certiorari or any other appropriate writ order or direction; ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to take over and complete the construction work of the project, Vastuhara Vastugramam, at Guruvayoor and handover the same to the petitioners after obtaining completion certificate; iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to deposit the monies illegally diverted by it before this Hon'ble court; iv) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to ensure that housing projects are completed in a time-bound manner as contemplated in RERA and home buyers are not defrauded; W. A. Nos. 1682 & 1712 of 2020 -12- v) Appoint a court receiver for the project until the disposal of this writ petition.” 4. The subject issue arises under the SARFAESI Act, 2002. The appellants are purchasers of residential apartments in the multi storied building constructed by the 4[th] respondent in W. A. No. 1712 of 2020 namely M/s Vasthuhara Developers and Real Estate Ltd., Punkunnam, Guruvayur. Apparently, the builder has availed loan from M/s Thrissur District Co-operative Bank Ltd., the 3[rd] respondent in W. A. No. 1712 of 2020, mortgaging the property having an extent of 88.516 cents in Re-survey Nos. 133/3, 133/8, 133/9, 133/10, 133/14, 133/15, 133/16 and 133/17 in Chavakkad Taluk of Thrissur District. The builder has failed to repay the loan advanced by the Thrissur District Co-operative Bank and thereupon Bank initiated proceedings under the provisions of the SARFAESI Act. It was thus challenging the legality and correctness of the said proceedings the writ petitions were filed. 5. The learned Single Judge after taking into account the rival submissions made across the Bar has arrived at the conclusion that the notices are sent under the SARFAESI Act by the Bank to the party respondents, namely the builder, and therefore there is no cause of W. A. Nos. 1682 & 1712 of 2020 -13- action accrued in favour of the petitioners to invoke extraordinary writ jurisdiction of the writ court under Article 226 of the Constitution of India, however left open the liberty of the petitioners to take appropriate measures in view of the claim as provided under Section 17 of the SARFAESI Act 2002 or under the Real Estate (Regulation and Development) Act, 2016. It is thus challenging the legality and correctness of the judgment of the learned Single Judge the writ appeals are filed. 6. We have heard learned counsel for the appellants Sri. Rahul Venugopal, Sri. P. C. Sasidharan for the Thrissur District Co-operative Bank and Sri. K. P. Harish, learned Senior Government Pleader for the State and perused the pleadings and material on record. 7. The sole question to be considered is whether any manner of interference is required to the judgment of the learned Single Judge. 8. It is well settled by a catena of decisions that a writ court shall not interfere with the proceedings initiated under the SARFAESI Act unless under extraordinary circumstances. Considering the earlier judgments, the Hon'ble Apex Court in **Phoenix ARC Private Limited** W. A. Nos. 1682 & 1712 of 2020 -14- ## **v. Vishwa Bharati Vidya Mandir & Ors. [(2022) 5 SCC 345]** , has ## held as follows:- “7.3 In the case of **Satyawati Tondon & Ors. (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 W. A. Nos. 1682 & 1712 of 2020 -15- ## 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 17 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 W. A. Nos. 1682 & 1712 of 2020 -16- carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corpn. 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 Corpn. 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 Ors. (supra)** after referring to the earlier decisions of this Court in the cases of **Sadhana Lodh Vs. National insurance Co. Ltd. and Anr., (2003) 3 SCC 524; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 and State Bank of India Vs. Allied Chemical Laboratories and Anr., (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** W. A. Nos. 1682 & 1712 of 2020 -17- **Siddeshwara Cooperative Bank Limited & Anr. (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. 9. It is required to be noted that it is the case on behalf of the appellant that as such the communication dated 13.08.2015 cannot be said to be a notice under Section 13(4) of the SARFAESI Act at all. According to the appellant, after the notice under Section 13(2) of the SARFAESI Act was issued in the year 2013 and thereafter despite the Letter of Acceptance dated 27.02.2015, no further amount was paid, the appellant called upon the borrowers to make the payment within two weeks failing which a further proceeding under Section 13(4) of the SARFAESI Act was proposed. Thus, according to the appellant, it was a proposed action. Therefore, the writ petitions filed against the proposed action under Section 13(4) of the SARFAESI Act was not maintainable and/or entertainable at all. 10. Assuming that the communication dated 13.08.2015 can be said to be a notice under Section 13(4) of the SARFAESI Act, in that case also, in view of the statutory remedy available W. A. Nos. 1682 & 1712 of 2020 -18- under Section 17 of the SARFAESI Act and in view of the law laid down by this Court in the cases referred to hereinabove, the writ petitions against the notice under Section 13(4) of the SARFAESI Act was not required to be entertained by the High Court. Therefore, the High Court has erred in entertaining the writ petitions against the communication dated 13.08.2015 and also passing the ex-parte ad-interim orders directing to maintain the status quo with respect to possession of secured properties on the condition directing the borrowers to pay Rs. 1 crore only (in all Rs.3 crores in view of the subsequent orders passed by the High Court extending the exparte ad-interim order dated 26.08.2015) against the total dues of approximate Rs.117 crores. Even the High Court ought to have considered and disposed of the application for vacating the ex-parte adinterim relief, which was filed in the year 2016 at the earliest considering the fact that a large sum of Rs.117 crores was involved. 11. Now, in so far as the reliance placed upon the decision of this Court in the case of **J. Rajiv Subramaniyan and Anr. (supra)** by the learned senior counsel appearing on behalf of the borrowers in support of his submission that writ petition would be maintainable, it is to be noted that in the aforesaid case, the learned counsel appearing on behalf of the Bank did not press the maintainability and/or entertainability of the writ petition under Article 226 and therefore, this Court had no occasion to consider the entertainability and/or maintainability of the writ petition. Therefore, the aforesaid decision is not of any assistance to the respondents – borrowers. W. A. Nos. 1682 & 1712 of 2020 -19- 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.” 9. It is quite clear and evident from the pleadings put forth by the appellants that a mortgage was created by the builder in favour of the 3[rd] respondent Bank and therefore the Bank was entitled to proceed in W. A. Nos. 1682 & 1712 of 2020 -20- accordance with the provisions of Act 2002 to recover the amount due to it. Therefore there is no doubt in our mind to say that, it is for the appellants to work out the remedy before the appropriate forum in order to ventilate the grievance of the appellants, who are said to be purchasers of apartments in the multi storied building complex constructed by the 4[th] respondent builder. 10. Anyway, various factual situations are described by the petitioners / appellants in the writ petitions and in the writ appeals, which is seriously and effectively disputed by the 4[th] respondent Bank and therefore we do not think that this is a matter to be considered invoking the writ jurisdiction; which is a well settled position in law. 11. Considering the issues so, we have no doubt in our mind to say that the learned Single Judge was right in declining to interfere with the notices issued by the Bank and disposing of the writ petition leaving open the liberty of the petitioners to take appropriate action in contemplation of the provisions of the SARFAESI Act 2002 and the Real Estate (Regulation and Development) Act, 2016. Needless to say, appellants have not made out any ground of W. A. Nos. 1682 & 1712 of 2020 -21- jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under the provisions of the High Court Act, 1958. Writ appeals fail and accordingly, they are dismissed. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE