Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 978 (PNJ)

Nirmal Kumar Verma v. Durga Engineering Works

2013-07-31

AUGUSTINE GEORGE MASIH, SANJAY KISHAN KAUL

body2013
JUDGMENT : Sanjay Kishan Kaul, J. The petitioner, a guarantor of the loan, seeks to assail notice dated 24.8.2011 issued u/s 13(2) of the SARFAESI Act, to which no objections were filed ultimately resulting in a notice u/s 13(4) of the said Act on 24.9.2012. Instead of approaching the DRT by filing proceedings u/s 17 of the SARFAESI Act, the petitioner filed a civil suit for injunction in a Court at Faridabad. After withdrawing the suit, now the present writ petition has been filed under Article 226 of the Constitution of India. On a query being posed to learned counsel as to why the appropriate remedy before the DRT was not sought to be exhausted, as enunciated in Mardia Chemicals Ltd. Vs. Union of India (UOI) and Others Etc. Etc., (2004) 4 SCC 311 , learned counsel insists that this Court is not precluded and ought to exercise jurisdiction in the facts of the present case under Article 226 of the Constitution of India. To buttress the submission, learned counsel has referred to two judgments: (i) Somnath Manocha Vs. Punjab and Sindh Bank and Another, AIR 2012 Delhi 168, and (ii) Indumati Pattanaik Vs. Chief Manager and Authorised Officer, Bank of India, Bhubaneswar Branch, (2005) 4 BC 357 , again of the Division Bench. 2. Learned counsel for the petitioner submits that though a decree was passed against both the borrowers and the guarantors on 6.12.1996, which was assailed in appeal and the appeal was dismissed on 2.11.1999, the time period for execution of the decree should be counted from the date when decree became executable which should be the date of passing of the decree. His submission, thus, is that since the decree could not be executed, the route of SARFAESI Act was not available and that aspect ought to be examined by this Court in the present proceedings. 3. We are not able to persuade ourselves to agree with the submission of the learned counsel for the petitioner. Insofar as those two judgments are concerned, they lay down a principle that non-exercising of jurisdiction under Article 226 of the Constitution of India is a matter of self-discipline of the Court rather than a bar when alternative remedy is available. We are not able to persuade ourselves to agree with the submission of the learned counsel for the petitioner. Insofar as those two judgments are concerned, they lay down a principle that non-exercising of jurisdiction under Article 226 of the Constitution of India is a matter of self-discipline of the Court rather than a bar when alternative remedy is available. In Somnath Manocha's case (supra), in the peculiar facts of the case, the Court interfered finding that the appropriate remedy, existing prior to the SARFAESI Act coming into force, had not been invoked. 4. In our view, this is not a fit case for exercising jurisdiction under Article 226 of the Constitution of India even though the alternative remedy is available. It is for the petitioner to satisfy the DRT as to how this remedy is not available in view of the date of decree and the appellate order. The decree, in fact, merges with the appellate order. The notice u/s 13(2) of the said Act is within the period of 12 years from the date of the appellate decree. This would, however, be a matter for the DRT to examine. We, thus, dismiss the writ petition with liberty to the petitioner to take recourse to the alternative remedy under the SARFAESI Act as enunciated in Mardia Chemicals's case (supra).