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2019 DIGILAW 746 (MP)

Manish Dwivedi v. Allahabad Bank

2019-11-01

MOHD.FAHIM ANWAR, SUJOY PAUL

body2019
ORDER 1. This petition is filed assailing the possession notice dated 7.6.2019. 2. Shri Shukla, learned counsel for the petitioners advanced singular contention. He submits that against the said notice, the petitioners already filed reply dated 8.3.2019 (Annexure P-4). The said reply has not been considered till date, which runs contrary to the section 13(3-A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002. Shri Shukla has taken pains to contend that the judgment of this Court reported in 2011 (2) MPLJ 224 (Velocity Ltd. Indore v. State Bank of India) will not come in his way because in the said case the writ petition was not entertained against an order whereby the representation has been rejected whereas in the instant case, the respondents have not taken any decision on the representation aforesaid despite the fact that they are under a statutory obligation under sub-section (3-A) to decide the said objection. Shri Shukla submits that in view of violation of mandatory provision of the said act, the principles of natural justice are violated and this petition is entertainable. 3. Shri Nair, learned counsel for the respondent No. 1 submits that the petitioners have an alternative remedy before the Tribunal. 4. We have heard the parties on this aspect. 5. We are not oblivious of the legal position that despite availability of a statutory alternative remedy, a writ petition can be entertained but such power is a discretion with the Court and not a compulsion. A Division Bench of this Court in Velocity Ltd. (supra) opined that the petitioners have a statutory alternative remedy in case of alleged breach of sub-section (3- A). 6. The petitioners’ representation/objection (Annexure P-5) was preferred almost after two and half months from the date of issuance of impugned notice dated 7.6.2019 (Annexure P-1). A plain reading of this representation shows that in principle the petitioner had not raised any objection against the possession notice. He had merely prayed for extension of time. There is a note appended to this objection (Annexure P-5), which shows that the Bank has expressed its inability to give time to the petitioner. In view of (2018)15 SCC 99 (ITC Ltd. v. Blue Coast Hotels Ltd.), it is clear that language of sub-section (3-A) is mandatory/imperative. He had merely prayed for extension of time. There is a note appended to this objection (Annexure P-5), which shows that the Bank has expressed its inability to give time to the petitioner. In view of (2018)15 SCC 99 (ITC Ltd. v. Blue Coast Hotels Ltd.), it is clear that language of sub-section (3-A) is mandatory/imperative. However, in the said judgment, it was noted that if creditor had not replied to debtors’ representation and there appears to be a breach of section 13(3-A) but the attending circumstances are important. Non compliance of sub-section (3-A) of section 13 cannot be of any avail to the debtor whose conduct has been merely to seek time and not to repay the loan as promised. [See sections 13 and 15]. In the instant case, in support of representation (Annexure P-5) the petitioner has not filed any document to show his incapacity etc. for non payment of loan. No medical documents are also filed to show that the petitioner had suffered any injury etc. In ITC Ltd. (supra), it was further held that failure to furnish a reply to representation was not of much significance since the creditor had undoubtedly considered the representation and granted sufficient opportunity and time to debtor to repay the debt. Hence, the question of non compliance with sub-section (3-A) to section 13 is of no avail in the peculiar facts and circumstances of this case. 7. Considering the aforesaid, in our view, it is not a fit case for entertaining a writ petition directly. In the peculiar facts of this case, we deem it proper to relegate the petitioner to avail the alternative remedy. 8. The apex Court in (2005) 8 SCC 264 (U.P. State Spinning Co. Ltd. v. R.S. Pandey and anr.) opined as under : “But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute.” 9. The petitioners are unable to show that if they are relegated to avail the statutory remedy, it will cause any palpable injustice to them. The petitioners are unable to show that if they are relegated to avail the statutory remedy, it will cause any palpable injustice to them. It is also not shown that the impugned show cause notice is passed by any authority which is incompetent. Thus, no case is made out for interference. The petitioners can avail the alternative remedy at the appropriate stage when measures are taken under section 13 of the said Act by secured creditor. 10. The petition is disposed of. ...........