Neutral Citation No. ( 2025:HHC:21181 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9603 of 2025. Decided on: 01.07.2025 A2Z Departmental Store .....Petitioner Vs. The Bhagat Urban Cooperative Bank and another …...Respondents Coram: The Hon'ble Mr. Justice G.S. Sandhawalia, Chief Justice. The Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting? For the Petitioner : Mr. Sunil Kumar Mukhi, Mr. Amit Singh Chandel and Mr. Abhnav Mehta, Advocates. G.S. Sandhawalia, Chief Justice. The petitioner is here for the third time challenging the securitisation proceedings, this time raising challenge to the E-auction proceedings held by the respondent-Bank. The prayer is to issue directions to furnish a final account statement and consider the petitioner’s request for ‘One Time Settlement’ in a time bound manner and stay the E-auction 2 proceedings pending adjudication of the present writ petition and for direction to disclose actual outstanding amount with statement of accounts. 2. The first Writ petition (CWP No. 7116 of 2024) was dismissed on 22.07.2024, while observing as under: “Notice. Mr. Navlesh Verma, learned Additional Advocate General and Mr. Narender Sharma, Advocate, appear and waive service of notice on behalf of the respective respondents. 2 After arguing for some time, learned counsel for the petitioner prays for and is granted permission to withdraw the instant petition with liberty to approach an appropriate Forum. 3. Accordingly, the instant petition is dismissed as withdrawn, with liberty as aforesaid. Pending application(s), if any, also stands disposed of.” 3. It is pertinent to mention that second Writ petition bearing CWP No. 9220 of 2024 (Annexure P-13) was dismissed by a detailed order dated 22.04.2025, whereby it has been recorded that the petitioner was Forum shopping in all possible Courts just to delay the sale process. The matter was unsuccessfully taken up by filing SLP No.13420 of 2025 titled M/s A2Z Departmental Store vs. The 3 Bhagat Urban Co. OP Bank Ltd., which was dismissed on 09.05.2025. The order passed by the Apex Court reads as under: “Upon hearing the counsel the Court made the following. Order. “1.We are not inclined to interfere with the impugned judgment and order of the High Court; hence, the special leave petition is dismissed. 2.Pending application(s), if any, shall stand disposed of” 4. Apparently, even a Review Petition bearing Diary Number 30467 of 2025 has been filed on 28.05.2025 against the said order. 5. The petition had initially come up on 16.06.2025 before this Court and on that date, the matter had been adjourned for 24.06.2025. The Coordinate Bench directed the petitioner to deposit the amount in the Registry of this Court and directed the case to be listed thereafter. The order dated 24.06.2025 reads as under: “CWP No. 9603/2025. 24.6.2025: Present: Ms. Akansha, Advocate, for the petitioner. 4 Before the petitioner is heard in the matter, let the petitioner deposit the amount in the Registry of this Court. List after the amount is deposited.” 6. Thereafter Civil Miscellaneous Application No. 14838 of 2025 has been filed for interim directions and on that account, the matter has been listed by the office in the Court. 7. It is pertinent to notice that the E-auction of the mortgaged property as such was fixed for 09.06.2025, whereby reserved price was fixed at Rs.1,22,36,500.00, and vide notice dated 05.05.2025 (Annexure P-1), the property was put to auction on “as is where is”, “as is what is” and “whatever there is” basis. From the document which now has been filed, it is apparent that vide communication dated 19.06.2025, the petitioner was informed that the Bank has sold the property through bank auction as loan limit account has been closed on 19.6.2025 and balance amount of Rs.36,748.25.00, has been deposited in their saving bank account. The petitioner has also been asked to vacate the first floor of the 5 building. The relevant portion of the said communication reads as under:- “BUCB/BO/313 /2025-26 Dated: 19th June, 2025 M/s A2Z Departmental Store Prop. Mr. Rajinder Singh S/o Mr. Gareeb Dass R/o VPO Dharampur, Tehsil Kasauli, District Solan HP. Sub: Auction of the secured assets Le. Land and building Comprising Khata/Khatauni No. 47/61, Khasra No. 115/20 area measuring 00-08 Bighs situated at Mauza Mohal Sihardi Musalmana, Tehsil Kasauli, District Solan HP. Built up are:- Basement 62.54 SOM, Ground Floor: 131.44 SQM, First Floor: 136.21 SOM Second Floor: 136.21 SQM. Total area: 466.40 SQM under Sarfaesi Act 2002-Information-thereof. Sir. It is to inform you that the bank has sold your property through E-Auction (public tender) on dated 09/06/2025. The detail of the property Land and building Comprising Khata Khatauni No. 47/61, Khasra No. 115/20 area measuring 00-08 Bigha situated at Mauza Mohal Sihardi Musalmaña. Tehsil Kasauli, District Solan HP. Built up area:-Basement 62.54 SQM, Ground Floor: 131:44 50M First Floor: 136.21 SOM Second Floor: 136.24-SQM, Tajal area: 466.40 SQM The sale price of the asset is Rs. 1, 22, 86,500.00. Your loan/limit accounts has been closed as on 19/06/2025 and balance amount of Rs. 36,70,448.25 has been deposited in your Saving Bank account no. 8250040401006504. Reference to the High Court of Himachal Pradesh Shimla orders dated 22/04/2025 in the case CWP No. 9220 of 2024, you are advised to please vacate the "floor of the building.” 6 8. The Counsel for the petitioner has vehemently argued that the inventory as such was prepared and possession as such was taken on 29.07.2024. He has referred to the inventory to argue that he has not been given the said items as such and the Bank has acted in haste. The said argument is also without any basis on various accounts. Firstly on account of the auction having taken place, the right of third person has come in place and the petitioner has not made any attempt as such to implead the said person in the Writ petition as party. 9. On earlier two occasions also, the case was dismissed on account of the fact that remedy lies before the Debt Recovery Tribunal (hereinafter referred to as ‘the Tribunal’). It is even now if the property has been auctioned at a price which is sought to be submitted is below the market value, it is always open to the petitioner to raise this ground before the Tribunal under Section 13 of the Securitisation and Reconstruction of Financial Assets 7 and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the SARFAESI Act,2002’). 10. In such circumstances, the petitioner having lost the litigation as such up to the Apex Court now cannot challenge the auction proceedings except under the procedure prescribed under the SARFAESI Act,2002, which provides the manner in which the sale of the immovable secured assets is to be done. Reference can be made to Rules 4 to 9 of the Security Interest (Enforcement) Rules, 2002 and especially to Rule 8 which provides the sale of the immovable secured assets and the valuation to be done under sub-Rule 5 and the delivery of possession on the confirmation as such of the sale under Rule 9 sub- Clause (2). 11. Section 17 of the SARFAESI Act, 2002, provides the rights of the borrower aggrieved by any of the measures taken under sub-Section 13 (4) by the secured creditor or his authorized officer to make application to the Debts Recovery Tribunal having 8 jurisdiction within forty-five days from the date on which such measures had been taken. The reference to Section 13 (4) of the said Act would go on to show that the rights as such is regarding possession of the secured assets and the right of the secured creditor to recover his secured debt by way of sale of the secured assets and in such circumstances it is always open to the petitioner to approach the Tribunal as such for necessary relief he is now seeking in the present proceedings regarding the auction proceedings which have been conducted on account of the default, as noticed, of a huge amount of money. 12. 12. Since we had earlier also noticed that the possession had been taken by the Bank by resorting to the procedure prescribed by filing an application as such under Section 14 of the the SARFAESI Act,2002, the interim relief which had been taken from this Court which had been subsequently vacated by us on 22.04.2025 by specifically noticing the conduct of the petitioner and the fact that the interim relief had been 9 granted and de-sealing had been also ordered and order passed on 05.09.2024 had been recalled. 13. Apparently, the petitioner still continues to hold the possession of one of the floors as noticed above, which would be clear from the communication of the Bank dated 19.06.2025, reproduced above. 14. The argument raised regarding the inventory passed is also without any basis as from the earlier litigation, it would be clear that the inventory as such is dated 29.07.2024. Much water has flown thereafter and therefore, reference to the said document is as such without any basis by the Counsel rather the perusal of the communication dated 24.04.2025, as such would go on to show that huge amount was outstanding which has now been recovered by putting the mortgaged property to sale. The said communication dated 24.4.2025, reads as under: “M/s AZZ Departmental Store Prop. Mr. Rajinder Kumar R/o VPO Dharampur, Tehsil Kasauli, District Solan HP. 10 Subject: Regarding settlement of the loan accounts in reference to CWP 9220/2024 decision dated 22/04/2025. In reference to the high Court of Himachal Pradesh Shimla decision CWP No 9220 of 2024 dated 22nd April, 2025 you are hereby requested to deposit the total outstanding amount of Rs. 84,16.558.78 (CC Limit Account no. 8250052102000079 amount of Rs. 23,68,834.98 & Loan Account No. 8250053001000007 amount of R 60, 47,723.80) as on 24/04/2025 plus future interest within seven days from the receipt of this letter. Failing which you are further directed to vacate the residential portion of the building comprised in khata/khatauni No. 47/61, Khasra No. 115/20 area measuring 8 Biswa situated at Mauza Mohal Sihardi Musalmana, Hadbast No. 769, Tehsil Kasauli, District Solan HP so that the bank can sale the asset through E-Auction under SARFAESI Act 2002 to recover the public money involved.” 15. We do not wish to repeat that the Apex Court in South Indian Bank Ltd. and others vs. Naveen Mathew Philip and another (2023) 17 SCC 311 has held that in financial matters, the Writ Courts as such would be debarred to invoke its jurisdiction. 16. A similar view has also been taken by a 3- Judge Bench in Civil Appeal arising out of SLP (C) No.8867 of 2022, titled as PHR Invent Educational Society Versus UCO Bank and 11 others, (2024) 6 SCC 579, wherein, the settled law from United Bank of India v. Satyawati Tondon and others, (2010) 8 SCC 110, was taken into consideration, apart from the judgment in the case of Celir LLP v. Bafina Motors (Mumbai) Private Limited and Others, (2024) 2 SCC 1: 2023 INSC 838, wherein, it was specifically mentioned that while dismissing the writ petitions, the High Courts have to be reminded of the observations made in the case of Satyawati Tondon, supra. Relevant part reads as under:- “15. It could thus be seen that, this Court has clearly held 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. It has been held 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. The Court clearly observed that, 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. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still 12 the Courts cannot be oblivious of the rules of self-imposed restraint evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, still it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution. 22. It can thus be seen that it is more than a settled legal position of law that in such matters, the High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available.” 17. In G. Vikram Kumar vs. State Bank of Hyderabad and others (2023) 14 SCC 159, the Apex Court has held that the right of the auction purchaser as such cannot be scuttled by way of approaching the Writ Court under Article 226 of the Constitution of India. It was further held that challenge as such to the E-auction proceedings also was liable to be objected to by filing appeal under Section 17 of the SARFAESI Act by approaching the DRT as Section 13 (4) of the said Act provides that any steps taken by the Bank are liable to be questioned before the Tribunal, in view of the said provisions. Resultantly, order passed by the High Court as such interfering with the auction proceedings 13 was set aside. Relevant paragraphs of the said judgment reads as under: “24. At the outset, it is required to be noted that what was challenged before the High Court by respondent no.1 in a writ petition under Article 226 of the Constitution of India was the e-auction notice which was pursuant to the action initiated by the Bank in exercise of powers under Section 13 (4) of the SARFAESI Act. At this stage it is required to be noted that Civil Appeal Nos. 3152-3153 of 2023 e-auction was held/conducted on 31.08.2016 in which the appellant participated and was declared as a successful bidder and he made a payment of 25% of the bid amount on the very day i.e., on 31.08.2016. However, thereafter the respondent no.1 filed the writ petition before the High Court challenging the e-auction notice dated 28.07.2016 on 14.09.2016 that is after conducting of the auction. 25. It is required to be noted that against any steps taken by the Bank under Section 13 (4) of the SARFAESI Act the aggrieved party has a remedy under the SARFAESE Act way of appeal under Section 17 of the SARFAESI Act to approach the DRT. Therefore, in view of the availability of the alternative statutory remedy available by way of Civil Appeal Nos. 3152-3153 of 2023 proceedings/appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petition under Article 226 of 14 the Constitution of India in which the e-auction notice was under challenge. Therefore, the High Court has committed a very serious error in entertaining the writ petition under Article 226 of the Constitution of India challenging the e-auction notice issued by the Bank in exercise of power under Section 13 (4) of the SARFAESI Act.” 18. In such circumstances, once there is an alternative remedy available, we are not inclined to entertain the writ petition which is accordingly dismissed along with pending application(s) if any. (G.S. Sandhawalia) Chief Justice (Ranjan Sharma) Judge July 01, 2025. (cm Thakur)