- 1 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 29034 OF 2023 (GM-RES) BETWEEN: 1. 2. MR C SHAMSHUDDIN, S/O MR C M ISMAIL, AGED ABOUT 50 YEARS, PROP. M/S ASIAN HARDWARE, NO 26, ANNIPURA MAIN ROAD, NEAR BMTC BUS DEPOT, SUDHAMANAGAR, WILSON GARDEN, BENGALURU 560 027. M/s. ASIAN HARDWARE, REP. BY ITS PROP. C. SHAMSHUDDIN …PETITIONERS (BY SMT. MONISHA M., ADVOCATE) AND: M/S UNION BANK OF INDIA, (INCORPORATED UNDER THE BANKING COMPANIES ACQUISTION AND TRANSFER OF UNDERTAKINGS) ACT 1970 ASSET RECOVERY BRANCH, BENGALURU NORTH, NO 1/1 1st FLOOR, "JEEVAN SAMPIGE", 2ND MAIN, SAMPIGE ROAD, MALLESHWARAM, BENGALURU 560 003, REP BY AUTHORIZED OFFICER, BRANCH MANAGER. …RESPONDENT (BY Smt. DIVYA PURANDAR, ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO a) SETTING ASIDE THE POSSESSION NOTICE DATED 14/12/2023 VIDE ANNEXURE-C ISSUED BY THE RESPONDENT BANK STATING THAT THE ENTIRE RECOVERY PROCEEDINGS INITIATED BY THE RESPONDENT BANK AGAINST THE SCHEDULE PROPERTY ARE ILLEGAL AND IN VIOLATION OF THE SARFAESI ACT, 2002. b) RESPONDENT BANK Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 NOT TO TAKE ANY ACTIONS AGAINST THE SCHEDULE PROPERTY AND TO ACCEPT THE PETITIONERS PROPOSAL TO RESTRUCTURE THE OUTSTANDING LOAN AMOUNT AND THEREBY ENABLE THE PETITIONER TO REGULARIZE HIS LOAN ACCOUNT. THIS PETITION, COMING ON FOR FRESH MATTER, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV ORAL ORDER The petitioners have called in question the correctness of the possession notice dated 14.12.2023 at Annexure - C issued by respondent - Bank. Various contentions have been raised by the petitioner including that there are genuine bonafide difficulties in not honouring repayment of the loan due to market circumstances. It is further submitted that the petitioners have complied with the interim order passed by this Court. 2. Learned counsel for the respondent submits insofar as impugned proceedings are concerned, it is open for the petitioner to take up appropriate proceedings under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for brevity). It is further submitted that impugned possession notice being only consequential proceedings consequent to the - 3 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 order of the Magistrate, the question of independently assailing the same would not arise. While petitioners may seek appropriate relief at Annexure - C before the Debt Recovery Tribunal( 'DRT' for brevity) itself. 3. While noticing the contentions of the respondents and that the petitioners have a substantive remedy under Section 17 of the SARFAESI Act, the petition is disposed of without entering into the merits of the matter. 4. In light of the contentions raised it is relevant to take note of the observations of the Apex Court in the case of United Bank of India v. Satyawati Tondon and Others - (2010) 8 SCC 110, that the appropriate remedy would be to relegate the petitioner to seek for substantive remedy before the Debt Recovery Tribunal. The relevant observations of the Apex Court are as follows: "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 - 4 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 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. 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 - 5 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 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. 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. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." 5. In light of the observations made by the Apex Court, it can be noticed that several factual contentions raised by the petitioners are matters that cannot be adjudicated in the present proceedings. 6. Accordingly, the petition is disposed off relegating the petitioners to avail of the substantive remedy as regards the impugned proceedings. All contentions of both the sides are kept open. 7. In light of disposal of writ petition, it would meet the ends of justice by directing the respondent- bank not to - 6 - HC-KAR NC: 2025:KHC:27872 WP No. 29034 of 2023 take any precipitative steps for a period of three weeks from today. 8. The interim protection granted under this order is only to enable the petitioners to avail of his substantive remedy and must not be considered to be an order passed on the basis of adjudication on merits. Upon the lapse of the time stipulated, the protection granted would cease to operate and the authorities before whom petitioners may approach are to look at the matter afresh uninfluenced by the observations made herein. 9. Needless to state that while considering the aspect of limitation, in the event the proceedings are instituted before the DRT, time spent before this Court may be taken note of appropriately. Office to show name of Smt.Monisha M, as learned counsel representing the petitioner and delete name of Smt.Radhika M., earlier counsel. Sd/- (S SUNIL DUTT YADAV) JUDGE PSG:List No.: 1 Sl No.: 33