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2018 DIGILAW 820 (ORI)

Kamalakanta Das v. A. O. , Indian Overseas Bank

2018-11-28

S.K.SAHOO, S.PANDA

body2018
ORDER 28.11.2018. Heard the petitioner in person and Mr. Kar, learned Counsel for opposite parties-Bank. 2. This Writ Petition has been filed by the petitioner challenging the notice dated 22.02.2017 under Section 13 (2) and the notice dated 21.07.2017 under Section 13 (4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 issued by the Authorized Officer, Indian Overseas Bank-opposite party No.1 directing the petitioner to pay the outstanding dues of Rs.79,82,623.63 plus interest and the auction sale notice was issued on 18.09.2017 pursuant to the notice under Section 13 (4) of the Act. 3. It appears that the petitioner having failed to repay the loan amount, the opposite parties-Bank have issued the possession notice and have taken possession of the mortgaged property in question on 21.7.2017. Learned counsel for the Bank submitted that the petitioner-loanee is a chronic defaulter and he is not ready and willing to deposit the outstanding dues after notices were issued under Section 13 (2), 13 (4) and for auction of the secured property. 4. The Apex Court in the case of Punjab National Bank vs. O.C. Krishnan and others reported in (2001) 6 SCC 569 held that – “6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.” The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others reported in 2011 (2) SCC 782 observing. “23. “23. 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. (See. Sadhana Lodh v. National Insurance Co. Ltd.). In the case of Sri Siddeshwara Cooperative Bank Ltd., and another vs. Ikbal and others reported in 2013 (10) SCC 83 , it was observed that the action of the Bank under Section 13 (4) of the ’SARFAESI Act’ available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon the decision rendered in the case of United Bank of India vs .Satyawati Tandon and others (2010) (8) SCC 110) observing. “27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 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. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. 28.... In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.” The aforesaid decisions have been reiterated in the case of State Bank of India vs. Mathew K.C. (Civil Appeal No.1281 of 2018 disposed of on 30.01.2018) wherein the Apex Court held that the order passed in a Writ Petition under Article 226 of the Constitution of India staying further proceedings at the stage of Section 13 (4) of the Act is contrary to the law laid down by the said Court under Article 141 of the Constitution of India and is unsustainable. 5. 5. In view of the aforesaid settled position of law, we are not inclined to entertain this Writ Petition in exercise of the jurisdiction under Article 226 of the Constitution of India. Accordingly, this Writ Petition is dismissed. Petition dismissed.