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2012 DIGILAW 1136 (AP)

Helen Mary v. Canara Bank, Sainikpuri Branch, Secunderabad

2012-11-16

PINAKI CHANDRA GHOSE, VILAS V.AFZULPURKAR

body2012
Judgment PINAKI CHANDRA GHOSE, ACJ This writ petition is filed for a direction to respondent Nos.1 and 2 to extend one time settlement opportunity to her in respect of Flat bearing No.201 admeasuring 900 sft, 2nd Floor, Sri Sai Residency, Safilguda, Secunderabad, and to grant six months time for payment of the outstanding balance. 2. The property in question was originally belong to respondent No. 3, who availed loan from respondent No. 1 - bank. The petitioner entered into an agreement with respondent No.3 for purchase of the flat. The petitioner statedly paid token advance of Rs.50,000/- to respondent No.3 and took possession of the property on 18.8.2008. The petitioner was told by respondent No.3 that he would clear the loan amount of the bank whenever the money is given to him by the petitioner on instalment basis as per the agreement. As there was default in repayment of the loan, notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARF AESI Act'), was issued to petitioner. Hence, the petitioner approached this Court with the prayer as aforesaid. 3. Heard the learned Counsel for the parties and perused the material available on record. 4. It appears that there was default in repayment of the loan due to the respondent bank relating to the property in question. Hence, proceedings under Section 13(2) of the Act were initiated by the bank. Since the petitioner has an alternative remedy, we are of the opinion that no order can be passed in favour of the petitioner in this writ petition. In United Bank of India v. Satyawati Tandon and others, (2010) 8 SCC 110 , the Supreme Court held that the High Courts should not interfere in the cases where alternative remedy is available. In the said judgment the Supreme Court has specifically held in Paragraphs 53 and 55, as under: "53. In Raj Kumar Shivahare v. Directorate of Enforcement, (2010) 4 SCC 772 , the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: '31. In Raj Kumar Shivahare v. Directorate of Enforcement, (2010) 4 SCC 772 , the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: '31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case, the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's Counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact, there could hardly be any reason since the High Court itself is the appellate forum.' 54. ... ... ... 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 these circumstances, we dismiss the writ petition giving liberty to the petitioner to approach the appropriate forum. Rule is discharged. No costs.