Calcutta High Court (Appellete Side)
M/S. Kirti Commosales Llp & Ors vs Canara Bank & Ors on 8 April, 2026
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
2026:CHC-AS:574
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
WPA No. 4060 of 2026
M/s. Kirti Commosales LLP & Ors.
Vs.
Canara Bank & Ors.
For the petitioner : Mr. Arindam Banerjee, Senior Advocate.
Mr. Vikas Baisya, Adv.
Ms. Ranjana Seal, Adv.
Mr. Anshunath Chakraborty, Adv.
For the State : Mr. Jishnu Chowdhury, Senior Advocate.
Mr. Farooq Ali, Adv.
Mr. Faizan Md. Zafar, Adv.
Mr. Andolon Sarkar, Adv.
Heard on : 8 April 2026
Judgment on : 8 April 2026
Ravi Krishan Kapur, J.:
1. This is a writ petition seeking quashing of a letter of rejection dated 20
January 2026 and for consequential reliefs including refund of the entire
sale consideration paid by the auction petitioner alongwith interest.
2. Briefly, pursuant to credit facilities granted by the respondent no.1 bank in
favour of the private respondent no 7, an equitable mortgage had been
created as security of an immoveable property (a residential flat measuring
approximately 4050 sq. ft. on the entire fourth floor of premises No. 237, N.
S. C. Bose Road, P.O. Naktala, P.S. Jadavpur morefully described in the
petition). Subsequently, the respondent no.7 defaulted and failed to make
payment of the stipulated amounts. In such circumstances, the respondent
2
2026:CHC-AS:574
no.1 bank was compelled to take possession of the secured asset and
conduct an e-auction under the provisions of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (SARFAESI Act). Ultimately, the petitioner was declared as the
successful purchaser and after payment of the entire consideration was put
into possession of the above premises. The respondent no.1 bank had on 26
February 2024 issued a Certificate of Sale in favour of the petitioner. Later,
the Certificate of Sale was also duly registered on 8 April 2024.
3. On behalf of the petitioner, it is submitted that they are not aggrieved by any
action or inaction under the SARFAESI Act. There is a pure question of law
which is raised in this petition inasmuch as there has been failure to refund
the entire consideration which has passed under a void sale. It is further
submitted that the sale conducted by the respondent bank is a nullity since
the bank had no title to conduct such sale and there could have been no
“security interest” under the SARFAESI Act. The property belonged to a third
party and the provisions of the SARFAESI Act were inapplicable. In such
circumstances, the present writ petition does not pertain to the niceties or
any infraction of the SARFAESI Act. There is a serious infirmity in the
respondent bank conducting such sale and based on the principles of
restitution, the petitioner is entitled to the entire sale consideration. In
support of such contentions, the petitioner relies on the following cases:
Godrej Sara Lee Ltd. vs. Excise and Taxation Officer-cum-Assessing Authority
and Ors. 2023 SCC OnLine SC 95, Whirlpool Corpn. v. Registrar of Trade
Marks, (1998) 8 SCC 1, State of U.P vs Mohammad Nooh , 1957 SCC Online
32026:CHC-AS:574
SC 21 and Mr. Mandava Krishna Chaitanya v UCO Bank, Asset ManagementBranch, 2018 SCC Online Hyd 196.
4. On behalf of the respondent no.1 bank, it is submitted that the petitioner
has a statutory alternative remedy under section 17 of the SARFAESI Act
and the writ petition is liable to be dismissed. All the objections raised by the
petitioner are exclusively triable by the Debts Recovery Tribunal under the
SARFAESI Act. There are no exceptions warranting this Court to entertain
the writ petition. Insofar as the merits of the case are concerned, there is
collusion and conspiracy by and between the petitioner and the respondent
no. 7 borrower. The entire ill-design of the petitioner is to nullify the sale
and unnecessarily procrastinate the recovery proceedings. The petitioner
and the respondent no. 8 are in collusion and connivance and the only aim
is to thwart a valid sale. The petitioner has also challenged the sale after a
lapse of two years. In support of such contentions, reliance is placed on the
decisions in United Bank of India vs. Satyawati Tondon and Ors. (2010) 8
SCC 110, Agarwal Tracom Pvt. Ltd. vs. Punjab National Bank and Ors. (2018)
1 SCC 626, and K.C Ninan vs Kerala State Electricity (Board) 2023 14 SCC
431.
5. There have been no submissions made either on behalf of the borrower or
the ostensible owner being the respondent nos. 7 and 8 respectively.
6. The sale which is the subject matter of this proceeding has been conducted
by the respondent no.1 bank under the SARFAESI Act. A Sale Certificate has
also been issued in terms of the SARFAESI Act and the same has been duly
registered. It is only after a period of two years that the petitioner has now
4
2026:CHC-AS:574
challenged the sale on the ground that respondent no.1 bank could have
had no security interest in the property.
7. There is no quarrel with the proposition that the Writ Court may exercise
jurisdiction even in cases where there is an alternative efficacious remedy. In
fact, the concept of an alternative remedy pre-supposes that the Writ Court
has authority to entertain the matter. To this extent, a writ petition is
maintainable. Nevertheless, a Writ Court would be loath to exercise its
authority unless it falls within one of the exceptional circumstances. This is
the self-restraint which is required to be exercised by the Writ Court in
directing a party to pursue the statutory remedy before an efficacious
alternative forum. In Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8
SCC 1, it has been held as follows:
“14. The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provision
of the Constitution. This power can be exercised by the High Court not
only for issuing writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari for the enforcement of any of the
Fundamental Rights contained in Part III of the Constitution but also for
“any other purpose.
15. Under Article 226 of the Constitution, the High Court, having
regard to the facts of the case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective and efficacious
remedy is available, the High Court would not normally exercise its
jurisdiction. But the alternative remedy has been consistently held by
this Court not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle
of natural justice or where the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged. There is a plethora of
case-law on this point but to cut down this circle of forensic whirlpool, we
would rely on some old decisions of the evolutionary era of the
constitutional law as they still hold the field.”
8. Similarly, in Godrej Sara Lee Ltd. v. The Excise And Taxation Officer-Cum-
Assessing Authority & Ors (Supra), it has been held as follows:
5
2026:CHC-AS:574
“4. Before answering the questions, we feel the urge to say a few words
on the exercise of writ powers conferred by Article 226 of the
Constitution having come across certain orders passed by the High
Courts holding writ petitions as “not maintainable” merely because the
alternative remedy provided by the relevant statutes has not been
pursued by the parties desirous of invocation of the writ jurisdiction.
The power to issue prerogative writs under article 226 is plenary in
nature. Any limitation on the exercise of such power must be traceable
in the Constitution itself. Profitable reference in this regard may be
made to article 329 and ordainments of other similarly worded articles
in the Constitution. Article 226 does not, in terms, impose any limitation
or restraint on the exercise of power to issue writs. While it is true that
exercise of writ powers despite availability of a remedy under the very
statute which has been invoked and has given rise to the action
impugned in the writ petition ought not to be made in a routine manner,
yet, the mere fact that the petitioner before the High Court, in a given
case, has not pursued the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal. It is axiomatic
that the High Courts (bearing in mind the facts of each particular case)
have a discretion whether to entertain a writ petition or not. One of the
self-imposed restrictions on the exercise of power under article 226 that
has evolved through judicial precedents is that the High Courts should
normally not entertain a writ petition, where an effective and efficacious
alternative remedy is available. At the same time, it must be
remembered that mere availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of the High Court
under article 226 has not pursued, would not oust the jurisdiction of the
High Court and render a writ petition “not maintainable”. In a long line
of decisions, this court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to the
“maintainability” of a writ petition and that the rule, which requires a
party to pursue the alternative remedy provided by a statute, is a rule of
policy, convenience and discretion rather than a rule of law. Though
elementary, it needs to be restated that “entertainability” and
“maintainability” of a writ petition are distinct concepts. The fine but real
distinction between the two ought not to be lost sight of. The objection
as to “maintainability” goes to the root of the matter and if such
objection were found to be of substance, the courts would be rendered
incapable of even receiving the lis for adjudication. On the other hand,
the question of “entertainability” is entirely within the realm of discretion
of the High Courts, writ remedy being discretionary. A writ petition
despite being maintainable may not be entertained by a High Court for
very many reasons or relief could even be refused to the petitioner,
despite setting up a sound legal point, if grant of the claimed relief
would not further public interest. Hence, dismissal of a writ petition by
a High Court on the ground that the petitioner has not availed the
alternative remedy without, however, examining whether an exceptional
case has been made out for such entertainment would not be proper.
5. A little after the dawn of the Constitution, a Constitution Bench of this
Court in its decision reported in [1958] SCR 595 (State of Uttar Pradesh
v. Mohammad Nooh) had the occasion to observe as follows :
“10. In the next place it must be borne in mind that there is no rule, with
regard to certiorari as there is with mandamus, that it will lie only
62026:CHC-AS:574
where there is no other equally effective remedy. It is well established
that, provided the requisite grounds exist, certiorari will lie although a
right of appeal has been conferred by statute, (Halsbury’s Laws of
England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact
that the aggrieved party has another and adequate remedy may be
taken into consideration by the superior court in arriving at a conclusion
as to whether it should, in exercise of its discretion, issue a writ of
certiorari to quash the proceedings and decisions of inferior courts
subordinate to it and ordinarily the superior court will decline to
interfere until the aggrieved party has exhausted his other statutory
remedies, if any. But this rule requiring the exhaustion of statutory
remedies before the writ will be granted is a rule of policy, convenience
and discretion rather than a rule of law and instances are numerous
where a writ of certiorari has been issued in spite of the fact that the
aggrieved party had other adequate legal remedies.. . .”
9. In Godrej Sara Lee Ltd. (Supra), the Hon’ble Supreme Court was considering
whether the particular re-opening of the assessments for the years 03-04
and 04-05 was in excess of the jurisdiction conferred by law. The
competence of the revisional authority in exercising suo moto powers being a
pure question of law was in issue. It was in this background, that despite an
alternative remedy, the legality and impropriety of those proceedings were
gone into. There was a pure question of law and a serious question of
jurisdiction which fell for consideration.
10. In Union Bank of India vs. Satyawati Tandon and Others (Supra) it has been
held as follows:-
“42. There is another reason why the impugned order should be set aside.
If Respondent 1 had any tangible grievance against the notice issued
under Section 13(4) or action taken under Section 14, then she could have
availed remedy by filing an application under Section 17(1). The
expression “any person” used in Section 17(1) is of wide import. It takes
within its fold, not only the borrower but also the guarantor or any other
person who may be affected by the action taken under Section 13(4) or
Section 14. Both, the Tribunal and the Appellate Tribunal are empowered
to pass interim orders under Sections 17 and 18 and are required to
decide the matters within a fixed time schedule. It is thus evident that the
remedies available to an aggrieved person under the SARFAESI Act Act
are both expeditious and effective.
43. Unfortunately, the High Court overlooked the settled law that the High
Court will ordinarily not entertain a petition under Article 226 of the
72026:CHC-AS:574
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.
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.”
11. Similarly, in Agarwal Tracom Private Limited vs. Punjab National Bank
(Supra) it has been held as follows:
27. The reason is that Section 17(2) empowers the Tribunal to examine
all the issues arising out of the measures taken under Section 13(4)
including the measures taken by the secured creditor under Rules 8 and
9 for disposal of the secured assets of the borrower. The expression
“provisions of this Act and the Rules made thereunder” occurring in sub-
sections (2), (3), (4) and (7) of Section 17 clearly suggests that it includes
the action taken under Section 13(4) as also includes therein the action
taken under Rules 8 and 9 which deal with the completion of sale of the
secured assets. In other words, the measures taken under Section 13(4)
would not be completed unless the entire procedure laid down in Rules
8 and 9 for sale of secured assets is fully complied with by the secured
creditor. It is for this reason, the Tribunal has been empowered by
Sections 17(2), (3) and (4) to examine all the steps taken by the secured
creditor with a view to find out as to whether the sale of secured assets
was made in conformity with the requirements contained in Section
13(4) read with the Rules or not?
29. In our view, therefore, the expression “any of the measures referred
to in Section 13(4) taken by secured creditor or his authorised officer” in
Section 17(1) would include all actions taken by the secured creditor
under the Rules which relate to the measures specified in Section 13(4).
30. The auction-purchaser (appellant herein) is one such person, who is
aggrieved by the action of the secured creditor in forfeiting their money.
The appellant, therefore, falls within the expression “any person” as
specified under Section 17(1) and hence is entitled to challenge the
8
2026:CHC-AS:574
action of the secured creditor (PNB) before the DRT by filing an
application under Section 17(1) of the SARFAESI Act Act.
12. In Dimension Realtors Private Limited vs. District Magistrate, 2015 SCC
OnLine Cal 7463, after an exhaustive examination of sections 13, 14 and 17
of the SARFAESI Act, a Co-ordinate Bench had culled out the following
principles:
(i) The process under Section 14 of the Act is non-adjudicatory and
administrative in nature. The appropriate magistrate has to ascertain whether
the nine aspects referred to in the first proviso to Section 14(1) of the Act are
covered by the declaration furnished in the affidavit filed by the authorised
officer of the secured creditor. The magistrate cannot make any inquiry into the
truth of the contents of the affidavit. The magistrate is not called upon to issue
any notice to any person who is likely to be affected by any order passed or
action taken under such provision. The magistrate should act promptly and
ensure such assistance as may be proportionate to the requirement, but only
upon checking that all nine clauses of the proviso are covered in the affidavit.
(ii) A petition under Article 226 of the Constitution against anything done or not
done under Section 14 of the Act is maintainable; but such a petition should,
ordinarily, not be received to be assessed on merits if filed by a person, other
than the secured creditor, who claims to be affected or likely to be affected
thereby. As a corollary, a petition under Article 226 of the Constitution can be
entertained on merits against an order passed or any act done under Section
14 of the Act, if the complaint pertains to the lack of jurisdiction (primarily, on
territorial considerations) or when the absurdity of that which is complained
against is demonstrable. A further corollary would be that a secured creditor
may maintain a petition under Article 226 of the Constitution on merits if the
complaint is of lack of, or the inadequacy of, the assistance rendered under
Section 14 of the Act.
(iii) Neither any order nor any assistance provided under Section 14 of the Act
may be challenged by a borrower or any other person aggrieved thereby before
any court or tribunal; but such person (other than a secured creditor) may
apply under Section 17 of the Act in respect of the grievance by citing the
secured creditor approaching a magistrate under Section 14 of the Act as a
step taken in respect of a measure under Section 13(4) of the Act.
(iv) Any overt step taken by a secured creditor to actuate any of the measures
under Section 13(4) of the Act would give rise to an immediate cause of action
to a person who may be aggrieved thereby. Such aggrieved person may apply
under Section 17 of the Act upon being aware of the overt step taken by the
secured creditor, without having to wait for the completion of the relevant
measure by the secured creditor. As to the nature of any order that may be
passed on such application, whether immediately or otherwise, would depend
on the facts of a particular case viewed in the context of the ultimate object of
the Act to facilitate the access of the secured creditors to the secured assets
9
2026:CHC-AS:574
without waiting for the completion of a process of adjudication. In assessing
the desirability of passing an order, the tribunal will defer to the statutory
command in Section 34 of the Act that “no injunction shall be granted by any
… authority in respect of any action taken or to be taken in pursuance of any
power conferred by or under this Act” to ascertain whether the act complained
of is within the entitlement of the secured creditor “in pursuance of any power
conferred by or under this Act.”
(v) Any person aggrieved by any measure taken by a secured creditor (where
the commencement of the taking of the measure is upon an overt step being
taken by the secured creditor in such direction after the Section 13(3A) stage is
completed) may obtain, and be granted, if entitled on facts, the reliefs of
repossession or restitution or damages by the appropriate tribunal without
there being a distinction, in such regard, between a borrower as defined in the
Act and other persons aggrieved who may apply under Section 17 thereof.
13. In this background, on closer scrutiny of the facts of this case some of the
questions raised in this writ petition would necessarily involve adjudication
of disputed questions: (a) Whether the borrower had title over the property
or not at the time of creating the security interest? (b) Whether the bank had
title to the property or not? (c) Whether the sale conducted by the bank was
valid or not? Whether the petitioner is entitled to restitution or not? (d) What
is the true scope, purport and ambit of an “as is where is basis” sale? (e)
Whether the petitioner is an alter ego or stooge of the respondent no. 7
borrower or not? Such questions of fact would necessarily require
adjudication despite the petitioner making the facts appear as if they only
involved a pure question of law. Even the case of shifting hands of
conveyance jugglery or whether there has been good, proper and substantial
conveyancing is mixed question of law and fact. In such circumstances, the
facts of this case do not fall within any of the exceptions where the Writ
Court should exercise its discretion in entertaining the petition
10
2026:CHC-AS:574
notwithstanding the statutory alternative remedy under section 17 of the
SARFAESI Act.
14. Moreover, the sale was conducted on “as is where is basis”. The phrase “as
is where is basis” is not limited to the physical condition of the property but
extends to the condition of the title of the property and the extent and state
of whatsoever claims, rights and dues affect the property, unless stated
otherwise. In other words, the implication of the expression is that every
intending bidder is put on notice that the seller does not undertake any
responsibility in respect of the property or any liability for payment of dues
in respect thereof. The phrase postulates that the purchaser would be
acquiring an asset with all its existing rights, obligations and liabilities.
Thus, any prospective auction purchaser is put on notice of any liability
hidden or otherwise where a sale is on conducted as is where is basis. It is a
conscious and deliberate risk undertaken by any prospective auction
purchaser. To add to this, is the legal doctrine of Caveat Emptor where it
becomes the duty and obligation of every buyer to exercise due diligence
when undertaking a sale [K.C Ninan vs Kerala State Electricity (Board)
(Supra) @ paras 137-148].
15. There is also the further question of delay as to why has the petitioner
waited for a period of two years? The petitioner has been unable to provide
any reason for the delay in approaching this Court after a period of two
years since confirmation of the sale and registration of the Sale Certificate.
This is an additional factor which requires to be examined.
16. In view of the clear mandate of section 17 of the Act and the nature of the
factual disputes which arise for consideration it is abundantly clear that
11
2026:CHC-AS:574
there is a statutory alternative remedy available to the petitioner under
section 17 of the SARFAESI Act. For the above reasons, the writ petition is
dismissed.
17. It is made clear that there has been no adjudication on the merits of the
case and all questions would be decided by the concerned Debts Recovery
Tribunal having jurisdiction in case any such proceeding is filed. With the
above directions, WP 4060 of 2026 stands dismissed.
18. It is to be remembered that the SARFAESI Act is a complete Code by itself
and provides for expeditious recovery of dues arising out of loans granted by
financial institutions. Interference in such matters has a deleterious effect.
Loans by financial institutions are granted from public money generated at
the expense of the tax payer. Such loans do not become the property of a
person taking the loan but retains the character of public money given in a
fiduciary capacity as entrustment by the public. Timely repayment of loan
also enures liquidity to facilitate loan to be blocked by frivolous litigation by
those who can afford the same having been the recipient of the ill gotten
gains. In such circumstances, Courts should be extremely careful in
exercising any discretion in entertaining such writ petitions. The exercise of
discretionary jurisdiction under Article 226 of the Constitution of India has
to also depend on the conduct of the person seeking relief. Ordinarily, a
debtor or bank dodger is not entitled to any discretionary relief under Article
226 of the Constitution of India. [ITC Limited vs. Blue Coast Hotel Ltd. & Ors.
(2018) 15 SCC 99].
(Ravi Krishan Kapur, J.)
