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2014 DIGILAW 399 (AP)

Rajesh Binding Works, Vijayawada v. Authorised Officer, State Bank of India

2014-03-12

ASHUTOSH MOHUNTA, M.SATYANARAYANA MURTHY

body2014
JUDGMENT M. Satyanarayana Murthy, J. 1. This writ petition, under Article 226 of the Constitution of India is filed by the petitioner seeking to issue a direction by way of writ of mandamus directing both the respondents to issue fresh demand notice based on the revised claim of Rs. 10,85,767/- in place of earlier claim for Rs. 15,93,400/-. The petitioner availed loan by way of cash credit to an extent of Rs. 9,00,000/- and term loan to an extent of Rs. 11,10,000/- which is valid upto 2.3.2009 by hypothecating the stock and receivables with a margin of 25%, 40% respectively on agreed rate of interest at 0.25% above the rate of Reserve Bank of India with minimum of 12.50% with monthly rests. Due to difficulties in his business, the petitioner could not pay the loan amount; thereby, the account of the petitioner was declared as Non Performing Asset (N.P.A.) without any communication to him, freezed the account since 10.3.2010, thereby the petitioner suffered financial loss. 2. The first respondent initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (For short, 'the SARFAESI Act'), issued notice under Section 13(2) of SARFAESI Act for recovery of an amount of Rs. 15,93,400/-. Thereafter, the petitioner paid Rs. 4,00,000/- on 20.12.2010 and raised objections by filing Securitization Application No. 33 of 2011 before the Debts Recovery Tribunal (For short, 'D.R.T.') on 12.2.2011. Then only Rs. 4,00,000/- was given credit to his account. Thus, the notice under Section 13(2) is not disclosing total details of the amount actually due. 3. The Authorized Officer of the first respondent-Bank tried to take possession of the schedule property though it is exempted under Section 31(G) of the SARFAESI Act and also under Section 60(1) of Civil Procedure Code, 1908. All these illegalities in the claim were pointed out in SA No. 33 of 2011. Thus, the first respondent-Bank proceeded to recover the amount though stay petition in I.A. No. 70 of 2011 in SA No. 33 of 2011 are pending on the file of second respondent, where status-quo order was granted on deposit of Rs. 5,00,000/- on or before 25.3.2011 with the first respondent. Thus, the first respondent-Bank proceeded to recover the amount though stay petition in I.A. No. 70 of 2011 in SA No. 33 of 2011 are pending on the file of second respondent, where status-quo order was granted on deposit of Rs. 5,00,000/- on or before 25.3.2011 with the first respondent. But, the petitioner could not comply the order of the 2nd respondent, due to his ill-health and filed bona-fide document to show that he had been suffering from vascular disease and bedridden, thereby could not collect the amount due to the petitioner to pay to the first respondent, in compliance of the direction of second respondent. Finally, the petitioner requested to permit him to deposit Rs. 3,00,000/- as against the claim of Rs. 10,85,767/- in compliance of status-quo order dated 21.2.2011. According to which, the petitioner is required to deposit the same on or before 31.10.2011. Therefore, the act of the 1st respondent in proceeding to collect the amount during the pendency of SA No. 33 of 2011 is illegal and arbitrary and prayed to issue a fresh demand notice. 4. During course of argument, learned Counsel for the petitioner reiterated the contentions raised in the writ petition explaining the reason for non-compliance of the direction issued by the 2nd respondent while granting status-quo order; whereas the learned Counsel for the respondent opposed the petition on the ground that SA No. 33 of 2011 is pending, the remedy available to him is to seek extension of time before the second respondent, where securitization application is pending and cannot straight away approach this Court by filing the writ petition, finally prayed to dismiss the petition. 5. Admittedly, the account of the petitioner was declared as N.P.A. and initiated proceedings under the SARFAESI Act, issued notice under Section 13(2) but the petitioner instead of discharging the debt, approached the D.R.T. by filing SA No. 33 of 2011, obtained status-quo order on condition of deposit of Rs. 5,00,000/- before the 1st respondent-Bank on or before 25.3.2011, but did not comply the condition imposed by the second respondent, after granting status-quo order. 6. As seen from the order, if the petitioner failed to deposit the amount on the date fixed, the status-quo order automatically stands cancelled. 5,00,000/- before the 1st respondent-Bank on or before 25.3.2011, but did not comply the condition imposed by the second respondent, after granting status-quo order. 6. As seen from the order, if the petitioner failed to deposit the amount on the date fixed, the status-quo order automatically stands cancelled. Therefore, due to non-compliance of the order, status-quo order passed by the 2nd respondent is deemed to have been vacated and the 1st respondent is at liberty to proceed against the petitioner for realisation of the debt. 7. The petitioner explained the reason for non-compliance of the direction and specifically contended that due to vascular disease, he could not collect the dues from the debtors and comply the direction issued by the 2nd respondent. He produced certain documents. If really, the petitioner is interested in seeking extension of time, he would have approached the 2nd respondent explaining same reasons by producing the material, if necessary, and can seek extension of time for compliance of the direction but strangely the petitioner approached this Court by way of writ petition, that is how the petitioner is dragging the matter without even complying the direction paying minimum deposit of Rs. 5,00,000/-, without seeking extension of time before 2nd respondent in LA No. 70 of 2011 in SA No. 33 of 2011 is nothing but circumventing the provisions of the Act and such practices cannot be encouraged since it is depricable. 8. Even assuming for a moment, that in the order of the 2nd respondent in directing the petitioner to deposit Rs. 5,00,000/- before a particular date, specific remedy is available to him i.e., to approach the Debts Recovery Appellate Tribunal under Section 18 of SARFAESI Act, which permits any person to file an appeal aggrieved by any order passed by the D.R.T., but instead of approaching the Appellate Tribunal, circumventing the provisions of the Act, approached this Court seeking an unmeaning relief. 9. In Narayan Chandra Ghosh v. UCO Bank and others, (2011) 4 SCC 548 , the apex Court in Para 8 held as follows: "It is well-settled that when a statute confers a right of appeal, while granting the right, the Legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory. Bearing in mind the object of the Act, the conditions hedged in the said proviso cannot be said to be onerous. Thus, we hold that the requirement of pre-deposit under sub-section (1) of Section18 of the Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. In that view of the matter, no Court, much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the statute. We have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said section, the Appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement." 10. In Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others, (2011) 2 SCC 782 , the apex Court in Para 23 held as follows: "In our opinion therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person." 11. In another decision reported in United Bank of India v. Satyawati Tandon and others, (2010) 8 SCC 110 , the apex Court in Para Nos. 42 to 45 held as follows: "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 are both expeditious and effective. 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 are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution of India, 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. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 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." 12. In view of the principles laid down in the above judgment when an efficacious, effective, alternative, statutory remedy is available for redressal of the grievance of the petitioner, aggrieved by the order passed by the D.R.T., this Court cannot entertain the petition filed under Article 226 of the Constitution of India since alternative, effective, statutory remedy is available under Section 18(1) of the SARFAESI Act. 13. In a recent decision of the apex Court reported in Commissioner of Income Tax and others v. Chhabil Dass Agarwal, it was held as follows: "Non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. It is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy, however, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary, jurisdiction under Article 226. However, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to invoke the writ jurisdiction when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). Assessee in the instant case neither described the available alternative remedy under the Act as ineffectual and non-efficacious nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. Writ Court accordingly, as held, should not have entertained the writ petition." 14. In view of the principles laid down in the decision cited supra, when an alternative remedy is available, more particularly, when the petitioner is trying to drag the matter without permitting the 1st respondent-Bank to collect the amount invoking the provisions of SARFAESI Act, in the absence of complaining any statutory violation, writ petition is not maintainable. Hence, we find no grounds to issue any direction, more particularly, in the nature of writ of mandamus in favour of the petitioner, and accordingly, the petition is liable to be dismissed. 15. Accordingly, the writ petition is dismissed. In consequence, miscellaneous petitions, if any, pending in this petition, shall stand dismissed. No order as to costs. Petition dismissed