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2011 DIGILAW 677 (JHR)

Minni Devi v. Chairman, Bank of Baroda

2011-07-14

DHIRUBHAI NARANBHAI PATEL

body2011
JUDGMENT D.N. Patel, J. 1. The present petition has been preferred against the notice issued by the Respondent-Bank under Sub-section 4 of of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The said notice is dated 22nd June, 2007, which is at Annexure-3 to the memo of the present petition. 2. Learned Counsel appearing for the Petitioner submitted that in fact, the Petitioner has not taken any loan, but, the loan was taken by somebody else and the husband of the Petitioner was the guarantor and mortgaged the property belonging to the Petitioner. The principal amount of the loan has already been paid by the principal debtor. It is further submitted by learned Counsel for the Petitioner that before declaration of the non performing assets, no hearing was given to the Petitioner and, therefore, there is violation of principle of natural justice, as envisaged under Sub-section 2 of Section 13 of the Act, 2002 and, therefore, the notice issued under Sub-section 4 of Section 13 of the Act, 2002 deserves to be quashed and set aside. 3. I have heard Mr. Satya Prakash Sinha, leaned counsel appearing for the Respondent-Bank, who has vehemently submitted that no illegality has been committed by the Respondent-Bank in issuing the notice under Sub-section 4 of Section 13 of the Act, 2002 as the loan amount has neither been paid by the principal debtor nor by the guarantor and, therefore, notice has been issued. Moreover, the Petitioner is not remedy less. There is efficacious alternative remedy available to the Petitioner under Section 17 of the Act, 2002 to prefer an appeal before the Debts Recovery Tribunal. Learned Counsel for the Respondent-Bank has relied upon the decision rendered by the Hon'ble Supreme Court reported in (2010) 8 SCC 110 and the decision rendered by this Court reported in 2010 (1) JLJR 70 . 4. Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the reason that efficacious alternative remedy is available to the Petitioner by way of an appeal under Section 17 of the Act, 2002, looking to the decision rendered by this Court in the case of Hyder Seikh v. Bank of Baroda and Ors. reported in 2010 (1) JLJR 70 and also the decision rendered by the Hon'ble Supreme Court in the case of United Bank of India v. Satyawati Tandon and Ors. reported in (2010) 8 SCC 110 wherein at paragraphs 45 and 55, it has been held as under: 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. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Court 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 view of the aforesaid facts and judicial pronouncements, this writ petition is dismissed. Liberty is reserved with the Petitioner to move before the Debts Recovery Tribunal and the time consumed in this writ petition will be sympathetically considered by the Debts Recovery Tribunal for condonation of delay. Petition dismissed.