S. v. RAMASWAMY, S/O. LATE VIJERAGHAVAN VS AUTHORISED OFFICER, ASSET RECONSTRUCTION COMPANY (INDIA) LTD.
2017-02-08
A.S.BOPANNA
body2017
DigiLaw.ai
ORDER : The petitioner is before this Court assailing the order dated 05.08.2016 passed in S.A.No.4/2016 impugned at Annexure-J to the petition. In that view, the petitioner is seeking that a direction be issued to the Debts Recovery Tribunal (‘DRT’ for short) in the manner as has been sought in the petition. 2. The learned counsel for the petitioner has taken me through the writ petition papers to contend that at an earlier point, the petitioner was before the DRT in A.S.A.No.109/2005 wherein, the proceedings initiated by the respondent-Bank under Section 13 of the SARFAESI Act had been assailed. The DRT, through the order dated 12.07.2007 had found fault with the procedure adopted and had set aside the action of the respondent-Bank. 3. It is contended by the learned counsel for the petitioner that the respondent-Bank though had assailed the said order before the Debt Recovery Appellate Tribunal (‘DRAT’ for short), the said order has not yet been set aside and it is his contention that the appeal has been dismissed before the DRAT for non-prosecution. In that light, it is contended that when the present action was initiated by the respondent-Bank to sell the property in question through the sale notice dated 05.12.2015, the petitioner had filed the appeal under Section 17 of the SARFAESI Act in S.A.No.4/2016. It is in that light contended that the DRT in that circumstance ought to have examined the matter and should have arrived at the conclusion that the action would not be maintainable when through the appeal as mentioned earlier had found fault with the very proceedings initiated under Section 13 of the SARFAESI Act. Hence, it is further contended that the rejection of the review petition in R.A.No.5/2016 is also not justified. 4. To seek consideration in a writ petition, it is pointed that the very basic documents have not been looked into and no opportunity has been granted and therefore, a consideration is required in this petition. Insofar as the contention that is put-forth by the learned counsel for the petitioner relating to the earlier proceedings and therefore, the subsequent proceedings would not be maintainable, the learned Senior Counsel for respondent No.1 would point out that the present action is in respect of another property belonging to the petitioner and not in respect of the very action that had been assailed earlier. 5.
5. Though such rival contentions on the merits of the matter has been put-forth, I am of the opinion, in view of the fact that a Full Bench of this Court in W.P.No.28182/2013 dated 22.03.2016 has held that an appeal as provided under Section 18 of the SARFAESI will have to be availed before the DRAT in matters of the present nature, I do not propose to advert to the rival contentions on merits. 6. The learned counsel for the petitioner despite the decision of the Full Bench of this Court has sought to rely on several decisions of the Hon’ble Supreme Court and also the decisions of the various High Courts. In the present circumstance, I do not propose to refer to each of them and overburden this order since, at the outset, I find that the Full Bench of this Court in W.P.No.28182/2013 has made detailed consideration of the matter by referring to various decisions of the Hon’ble Supreme Court, as also the Division Bench decisions of this Court on the very same issue and has laid down that an appeal remedy will have to be availed and the writ petition would be maintainable, except under the circumstances which has been stated. In my opinion, the present case does not fall under the exception as stated in the writ petition referred to supra, nor is it appropriate for me to exercise the discretion. 7. Accordingly, the writ petition is disposed of with liberty to the petitioner to avail the remedy of appeal before the DRAT. If the appeal is filed by the petitioner within four weeks from this day, the DRAT shall take note of the period for which this writ petition was pending before this Court and consider the limitation liberally and in accordance with law. In view of disposal of the petition, I.A.Nos.1/2016, 2/2016 and 3/2016 are also disposed of.