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2012 DIGILAW 270 (UTT)

HUTS AND COTTAGES OFFICE v. ALLAHABAD BANK

2012-06-14

B.S.VERMA

body2012
JUDGMENT Hon. B.S. Verma, J. (Oral) (Stay Application No. 5811 of 2012) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari to quash the notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of the Security Interest Act 2002 (for short the Act) dated 22.11.2011 (Annexure-1) whereby the bank called upon the petitioner to repay the entire outstanding loan amount along with future and penal interest and the sale notice (Annexure-6) dated 5.5.2012 whereby the Bank is going to sale out the property in a pea nut rates. 2. Undisputedly, the petitioner has already availed alternate remedy and approached the Debt Recovery Tribunal under Section 17 of the Act. 3. A perusal of the record shows that the application of the petitioner for grant of interim relief was rejected by the Debts Recovery Tribunal, Lucknow by order dated 14.3.2012. Aggrieved, the petitioner approached the Debt Recovery Appellate Tribunal and the Debt Recovery Appellate Tribunal has passed an interim order on the undertaking given by the appellant-petitioner and directed the appellant to deposit a sum of Rs. 20.00 lacs within thirty days. The order passed in Appeal No. R-62/12 on 4.5.2012 has been annexed as Annexure-8 to the writ petition. 4. In the present writ petition, the petitioner has again assailed the notice under Section 13(2) of the Act dated 22-11-2011 against which the petitioner had already availed statutory remedy before the Debt Recovery Tribunal. If the petitioner is not in a position to deposit the amount of Rs. 20 lacs as has been undertaken by the petitioner, he may move recall application before the said appellate authority. 5. A Division Bench judgment of this Court in the case of Smt. Alpana Shankar Vs. Union Bank of India and another reported in 2005(1) U.D., 692, has observed in paragraph no.6 as under:- “6. Admittedly, the petitioner was given notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. If the petitioner failed to discharge the liabilities within sixty days, the respondent Bank is entitled to take recourse to one or more of the measures mentioned under section 13(4) of the said Act to recover the secured debt. If the petitioner failed to discharge the liabilities within sixty days, the respondent Bank is entitled to take recourse to one or more of the measures mentioned under section 13(4) of the said Act to recover the secured debt. If the petitioner is aggrieved by any such action taken by the Bank under Section 13(4) of the Act, the petitioner has a right of appeal to the Debt Recovery Tribunal under section 17 of the said Act. From the averments made in the writ petition, it is not clear whether the respondents have taken any action under Section 13(4) of the Act. If any such action has already been taken or as and when such action is taken, the petitioner can approach the Debt Recovery Tribunal under Section 17 of the Act for redressal of her grievance. For this reason also, this Court cannot interfere in the matter in exercise of the power under Article 226 of the Constitution of India. Unless there are extreme and compelling circumstances, the High Court cannot exercise jurisdiction under Article 226 of the Constitution of India when the party has got an effective alternate remedy available under the Statute. The petitioner has not made out any such extreme and compelling circumstance to persuade this Court to exercise the jurisdiction under Article 226 of the Constitution of India.” 6. Since the petitioner has already availed alternate statutory remedy under Section 17 of the Act, the present writ petition is not maintainable. The writ petition is dismissed in limine as not maintainable.