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Madhya Pradesh High Court · body

2018 DIGILAW 92 (MP)

Jyotsna Tiwari v. Allahabad Bank

2018-01-22

VANDANA KASREKAR

body2018
JUDGMENT 1. The petitioner has filed the present writ petition challenging the order dated 20.11.2017 as well as the order dated 1.1.2018 passed by DRT Jabalpur. 2. The petitioner while posted with the respondent/Bank had applied and was sanctioned Education Loan of Rs.7.50 lacs from its IIFM Bhopal Branch vide sanction letter dated 10.11.2007 for meeting the expenses related with BDS course of her daughter. The petitioner retired from the services in the year 2011. The petitioner could not repay the said loan amount as per terms of sanction. The respondent Bank, therefore, filed an application under section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 before the DRT Jabalpur. The petitioner as well as her daughter were arrayed as respondents No. 2 and 1 respectively in that case. The petitioner appeared before the DRT and filed written statements. No notice has been served on the daughter of the petitioner. On 16.10.2017 the case was listed first time before the Presiding Officer. As there was Deepawali Holidays, therefore, all cases were adjourned for 20.11.2017. Thereafter on 20.11.2017 the Advocate of the petitioner became slightly late, the case was called for hearing by Presiding Officer and petitioners were proceeded ex parte. The Presiding Officer heard the arguments and fixed the case for 1.1.2018 for pronouncement of the judgment. In the meantime, the petitioner has also filed an application under section 22(g) of the DRT Act for setting aside the ex parte order. However, the said application has not yet been decided by the Tribunal and ex parte judgment was passed against the petitioner. Being aggrieved by that order, the petitioner has filed the present writ petition. 3. Learned counsel for the respondent/Bank appears on advance copy submits that the petitioner has an alternate remedy of filing an“appeal against the order passed by the Tribunal under section 20 of the Act. He further relied on the judgment passed by this Court in the case of T.P.Vishnu Kumar v. C anara Bank, P.N.Road, Tiruppur and others, reported in 2013(II) MPWN 9 (SC)= 2014(1) MPLJ, 626. 4. On the other hand, learned counsel for the petitioner submits that availability of alternate remedy is no bar to entertain into the writ petition. The order passed by the Tribunal on the face of it is illegal and contrary to law and, therefore, writ petition is maintainable against the said order. 4. On the other hand, learned counsel for the petitioner submits that availability of alternate remedy is no bar to entertain into the writ petition. The order passed by the Tribunal on the face of it is illegal and contrary to law and, therefore, writ petition is maintainable against the said order. He relied on a judgment passed by this Court in the case of Tarnado Enterprises, Richhai and another v. Union Bank of India and others [2015(3) MPLJ 709]. 5. Heard learned counsel for the parties and perused the record. From perusal of the record it reveals that the petitioner has filed the present writ petition challenging the order dated 20.11.2017 and 1.1.2018 passed by the DRT. Against the order passed by the DRT, the petitioner has a statutory remedy of filing an appeal under section 20 of the Act. The petitioner can raise all the grounds which have been raised in this writ petition. The apex Court in the case of T.P.Vishnu Kumar (supra), in paras 9 and 10 has held as under : "9. Powers of the High Court under Article 226 cannot be invoked in the matter of recovery of dues under the Act, unless there is any statutory violation resulting in prejudice to the party or where such proceedings or action is wholly arbitrary, unreasonable and unfair. When the Act itself provides for a mechanism, by an appeal under section 20 of the Act, in our view, the High Court is not justified in invoking jurisdiction under Article 226 of the Constitution of India to examine that the rejection of the applications by the tribunal was correct or not. The petitioner and the contesting respondents have no case that either the bank or Tribunal had violated any statutory provisions by rejecting their applications. 10. Writ petition was preferred against the rejection of applications and the same were entertained by the learned single Judge and decided on merits and which in our view is impermissible while exercising its jurisdiction under Article 226 of the Constitution. If the correctness or otherwise of each and every interim order passed by the Tribunal, is going to be tested in a writ Court, it will only defeat the object and purpose of establishing such Tribunal. If the correctness or otherwise of each and every interim order passed by the Tribunal, is going to be tested in a writ Court, it will only defeat the object and purpose of establishing such Tribunal. We already noticed that due to the intervention of the writ Court, the matter got delayed for four years defeating the very purpose and object of the Act. We, therefore, find no merit in these petitions and the same are dismissed." 6. Thus, as per the said judgment passed by the apex Court, the present writ petition is not maintainable. The judgment cited by learned counsel for the petitioner has not taken into consideration the judgment passed by the apex Court of T.P.Vishnu Kumar (supra), and, therefore, the same would not be applicable in the present case. 7. Accordingly, I do not find any reason to entertain into the present writ petition. The petition is, therefore, dismissed. Sudhir Kumar Sharma for petitioner; S. Nair for respondent No. 1.