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2016 DIGILAW 2474 (HP)

Bachittar Singh v. Central Bank of India

2016-11-23

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of this writ petition, the petitioner has prayed for the following reliefs: “ (a) That the impugned Annexures P-1 & P-2 may very kindly be quashed and set aside with directions to the respondents to adhere to the recovery from the petitioner after waiving of the interest and as per procedure as is applied to other similarly situated persons, i.e. after adhering to One Time Settlement procedure prescribed and available with the respondents; (b) That the respondents may very kindly be directed to spell out the terms of the One Time Settlement and petitioner in the process undertakes to deposit half of the same in lumpsum and remaining in instalments; (c) That the entire record pertaining to the case may also be summoned by this Hon’ble Court for its kind perusal; (d) That cost of the writ petition may also be awarded in favour of the petitioner; (e) Any other or further relief as this Hon’ble Court may deed just and proper keeping in view the facts and circumstances of the case may also be passed in favour of the petitioner and against the respondents.” 2. Annexure P-1, quashing of which has been sought by way of this writ petition is a notice dated 16.06.2010, which was issued under Section 13 (2) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 and Annexure P-2 is advertisement issued by the respondent-Bank for the auction of the land and house of the petitioner to realize the amount which is due to the respondent-Bank from the petitioner. 3. When this case was taken up for arguments on 20.10.2016, the following order was passed: “When this case was taken up for arguments today, it was submitted by Mr. Ashok Kumar Sood, learned counsel appearing for the respondents that the present petition was not maintainable as the petitioner had directly approached this Court without exhausting the alternative remedy. Mr. Kishore Pundir, learned vice counsel appearing for the petitioner submits that some time may be granted to him to have necessary instructions in this regard. List on 3rd November, 2016. In the meanwhile, rejoinder, if any, be also filed to the reply filed by the respondents. 4. Mr. Kishore Pundir, learned vice counsel appearing for the petitioner submits that some time may be granted to him to have necessary instructions in this regard. List on 3rd November, 2016. In the meanwhile, rejoinder, if any, be also filed to the reply filed by the respondents. 4. Despite opportunity, neither any rejoinder was filed by the petitioner to the reply so filed by the respondents nor any rejoinder was intended to be filed. 5. I have heard the learned counsel for the parties on the issue of maintainability of the writ petition. 6. It is evident from the averments made in reply to the writ petition that no representation or reply was filed by the petitioner to the notice which was issued under Section 13 (2) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 nor he raised any objection against the said notice in any manner. It is further mentioned in the reply by the respondent-Bank that as petitioner failed to raise any objection against the notice as well as taking over possession of the property nor he came forward with the proposal for repayment of the said loan amount, therefore, the Bank was left with no other option but to proceed for sale of the mortgaged property. It was further mentioned in the reply that the proceedings of taking over possession of the property of the petitioner and sale of the property were strictly as per the provisions of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. 7. Be that as it may, the fact of the matter remains that the petitioner has challenged a notice issued under Section 13 (2) of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 and subsequent advertisement issued by the Bank for sale of the assets of the petitioner to recover its amount. The steps so taken by the Bank are as envisaged under Section 13 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. 8. The steps so taken by the Bank are as envisaged under Section 13 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. 8. Section 17 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 provides that any person aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorized officer may make an application alongwith such fee as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken. Advertisement for sale of the property is obviously a measure taken under sub-section (4) of Section 13 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002. The petitioner rather than pursuing his remedy as was available under the provisions of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002 has directly approached this Court without any cogent justification being there in the writ petition as to why the alternative remedy available to the petitioner has not been exhausted. 9. On the contrary, para-8 of the writ petition reads as under : “8. That there is no other alternative and efficacious remedy available to the petitioner except to approach this Hon’ble Court for the redressal of his grievances.” 10. In these circumstances, when there was an alternative and efficacious remedy available to the petitioner and no cogent explanation has been given by the petitioner as to why he has not invoked the said alternative remedy, there is merit in the contention of the learned counsel for the respondents that the present writ petition is not maintainable in view of alternative and efficacious remedy being available with the petitioner. 11. In General Manager, Sri Siddeshwara Cooperative Bank Limited and another Vs. Ikbal and others (2013) 10 Supreme Court Cases 83, Hon’ble Supreme Court has held that against the action of the Bank under Section 13 (4) of the SARFAESI Act, the borrower has a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17 and the said remedy is an efficacious remedy. Ikbal and others (2013) 10 Supreme Court Cases 83, Hon’ble Supreme Court has held that against the action of the Bank under Section 13 (4) of the SARFAESI Act, the borrower has a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17 and the said remedy is an efficacious remedy. It was further held by the Hon’ble Supreme Court that no doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, but by now it is well settled that where a Statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. It was further held by the Hon’ble Supreme Court that on misplaced considerations, statutory procedures cannot be allowed to be circumvented. 12. A three Judges Bench of the Hon’ble Supreme Court in Punjab National Bank and another Vs. Imperial Gift House and others (2013) 14 Supreme Court Cases 622 has held: “2. By the impugned order, in effect and substance, the High Court has quashed notice issued by the bank under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [for short, "the Act"]. 3. Upon receipt of notice, respondents filed representation under Section 13 (3) (A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13 (4)of the Act by the Bank, the writ petition was filed before the High Court. 4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13 (2) of the Act and quashing the proceedings initiated by the bank. 5. Accordingly, the appeal is allowed, impugned order passed by the High Court is set aside and the writ petition filed before it is dismissed.” 13. In Devi Ispat Limited and another Vs. State Bank of India and others (2014) 5 Supreme Court Cases 762, the Hon’ble Supreme Court has held that in view of an alternative remedy to make a representation to the Bank being available under the provisions of Section 13 (3-A) of the Act, there is no reason to by-pass the statutory mechanism. 14. State Bank of India and others (2014) 5 Supreme Court Cases 762, the Hon’ble Supreme Court has held that in view of an alternative remedy to make a representation to the Bank being available under the provisions of Section 13 (3-A) of the Act, there is no reason to by-pass the statutory mechanism. 14. Therefore, keeping in view the reliefs prayed for by the petitioner and the provisions of SARFAESI Act as well as law laid down by the Hon’ble Supreme Court as discussed above, in my considered view, the present writ petition is not maintainable in view of efficacious and adequate remedy being available to the petitioner under Section 17 of the SARFAESI Act. 15. Writ petition is accordingly dismissed with liberty to the petitioner to invoke the alternative remedy available to him. No order as to costs.