Bombay High Court: In a writ petition challenging the proposed sale of the subject property by the respondent-Bank and seeking to interdict the respondent-Bank from proceeding with the sale on the basis of provisions of the Insolvency and Bankruptcy Code, 2016 (IBC), the Division Bench of Manish Pitale and Shreeram V. Shirsat, JJ., held that the petitioner had an alternative, efficacious statutory remedy of approaching the Debt Recovery Tribunal (DRT) under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The Court observed that the petitioner had admittedly already taken recourse to the said statutory remedy while challenging the first sale notice and that the proceeding was still pending. The Court accordingly dismissed the writ petition.
Also Read: Bombay High Court Denies Urgent Relief Against Property Auction by Bank under SARFAESI Act
Background
The dispute arose from a writ petition filed and circulated urgently on the ground that the sale notice dated 22 July 2026 fixed sale of the subject property for 17 August 2026. The petitioner submitted that in the manner in which the proceedings initiated by the respondent-Bank had taken shape before the National Company Law Tribunal (NCLT) under the provisions of the IBC, the Court ought to interdict the respondent-Bank from going ahead with the sale of the subject property.
The petitioner referred to Sections 96, 100, 101, 121 and 122 IBC and submitted that the respondent-Bank, as a creditor itself, had initiated proceedings under Section 95 IBC, which had reached the stage of Section 100 IBC. It was submitted that even though the moratorium period of 180 days was over and there was no extension granted by the NCLT, until and unless the process reached its logical conclusion in the form of application of mind and thereupon an order being passed by the NCLT, the respondent-Bank could not be permitted to proceed further with the intended sale of the subject property.
The respondent-Bank raised objection with regard to the very maintainability of the petition and submitted that the petitioner had the alternative, efficacious statutory remedy of approaching the DRT under the provisions of the SARFAESI Act. It was further brought to the notice of the Court that the petitioner had admittedly earlier filed a securitisation application before the DRT challenging the first sale notice issued by the respondent bank and that the said proceeding was still pending.
It was also submitted that the petitioner was a mortgagor and could not couch its arguments as if it was a creditor. Attention of the Court was invited to proceedings in commercial suit, wherein the petitioner had challenged the very mortgage itself, claiming that the subject documents were forged and fabricated. The respondent-Bank pointed out that, in the said proceedings, the learned Single Judge had rejected the prayer for urgent ad interim relief on 24 March 2026, inter alia, observing that the petitioner indeed had the remedy of approaching the DRT.
Analysis
The Court first considered the elaborate submissions made on behalf of the petitioner in the context of the provisions of the IBC and observed that it was not impressed for the reason that the petitioner was a mortgagor of the subject property. The Court noted that an impression was sought to be created that the petitioner was a creditor and that the respondent-Bank was a creditor that was breaking ranks from other creditors, which ought not to be permitted under the scheme of the IBC.
The Court further noted that on a pointed query put to the petitioner as to the details of the other creditors, there was no answer forthcoming and it was submitted that if time was granted, the details could be placed before the Court.
Considering the tenor of submissions made on behalf of the petitioner, the Court was of the opinion that this was another attempt of a mortgagor to somehow wriggle out of the situation and not taking recourse to the statutory remedy available under the provisions of the SARFAESI Act. The Court emphasised that in the face of such an alternative, efficacious statutory remedy available to the petitioner, it was not inclined to entertain the present writ petition.
The Court referred to the Supreme Court decisions in United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 and Celir LLP v. Bafna Motors (Mumbai) (P) Ltd., (2024) 2 SCC 1, and observed that the Supreme Court had on a number of occasions indicated that, in the face of availability of such a statutory remedy, the High Courts exercising writ jurisdiction under Article 226 of the Constitution ought not to show any indulgence.
The Court also referred to the observations of the Supreme Court in Celir LLP, wherein it was noted that the Supreme Court had expressed serious concern despite its repeated pronouncements in regard to the High Courts ignoring the availability of statutory remedies under the Recovery of Debts and Bankruptcy Act, 1993 and the SARFAESI Act and exercise of jurisdiction under Article 226 of the Constitution.
The Court noted that it was an admitted position that the petitioner had already taken recourse to the said statutory remedy while challenging the first sale notice and that the proceeding was still pending. The Court further noted that the Single Judge of the Court in commercial suit had also declined urgent interim relief, inter alia, referring to availability of remedy of approaching the DRT.
The Court further observed that it found that the question of law sought to be raised by referring to the provisions of the IBC was nothing but another desperate attempt on the part of the petitioner to somehow avoid steps being taken by the respondent-Bank, which was a secured creditor, in terms of the provisions of the SARFAESI Act.
The Court also found substance in the contention raised on behalf of the respondent-Bank that the writ petition was not maintainable as the respondent was a private bank and as per settled law, a writ petition against a private bank was not maintainable. The Court emphasised that the respondent-private Bank was the sole respondent in the petition and, therefore, on that ground also, the writ petition deserves to be dismissed.
The Court thereafter noted that the petitioner had not disclosed the fact that the moratorium was not extended by the NCLT. It was only when the senior counsel appearing for the respondent-Bank tendered a copy of an order dated 1 July 2026 passed by the NCLT that the fact came to light. The Court held that this was another reason why the petitioner does not deserve any indulgence from the writ court.
The Court reiterated that it was a settled position of law that when a party approaches the writ Court, it has to come with clean hands. Referring to the Supreme Court decision in Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC 560, wherein it observed that a writ remedy is an equitable one and that a person approaching a superior court must come with a pair of clean hands and that such person should not suppress any material fact and should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
Decision
The Court accordingly dismissed the writ petition. Pending applications, if any, also stood disposed of.
[Ravijyot Finance and Leasing (P) Ltd. v. Unity Small Finance Bank Ltd., 2026 SCC OnLine Bom 9570, decided on 17-8-2026]
Advocates who appeared in this case:
For the Petitioner: Debesh Panda a/w. Ashish Venugopal, Shubhra Swami, Akshay Naik,
For the Respondent: Nitin Thakker, Senior Advocate a/w Saloni Kapadia, Daksha Kasekar, Shailaja Beria i/b. Cyril Amarchand Mangaldas
