Phosphate India Pvt. Ltd. And Others v. Union Bank Of India And Others
2020-01-16
ARUN BHANSALI
body2020
DigiLaw.ai
ORDER 1. This writ petition has been filed by the petitioner aggrieved against the order/communication dated 13/1/2020 (Annex.P/21), whereby, the respondent Bank rejected petitioner's proposal/representation and order dated 1/11/19 (Annex.P/16) passed by the District Collector, Udaipur under Section 14 of Securitization and Reconstruction of Financial Assests &Enforcement of Security Interest Act, 2002 ('the SARFAESI Act, 2002') ordering for taking possession of secured assets. 2. It is inter alia indicated in the writ petition that notice under Section 13 of SARFAESI Act, 2002 was issued to the petitioner on 10/5/2019 alleging that dues as on 1/5/2019 were Rs.4.16 crores and account became NPA on 30/4/2019, where after, on 30/7/2019 notice for taking possession under section 13 (4) of the Act was issued to the petitioner which resulted in passing of the order dated 1/11/2019 under Section 14 ordering for handing over possession of the secured assets to the respondent Bank. 3. The petitioner earlier approached this Court by filing SBCWP No. 18892/19 with various submissions seeking protection under various circulars issued by RBI being a Macro, Small and Medium Enterprise ('MSME'). However as the Court was approached without approaching the respondent bank with similar plea, the petitioner was directed to approach the bank by way of appropriate representation raising all the issues as raised in the writ petition. 4. Pursuant thereto, the petitioner approached the bank by way of representation (Annex.20). The representation has been dealt with/decided by the bank vide its order dated 13/1/2020 inter alia holding that the account was not eligible for restructuring under the RBI guidelines, that the bank is entitled for initiating action under the SARFAESI Act and that there is no mismatch in bank account balance. 5. It is submitted by Learned counsel for the petitioner that the action of the respondents in rejecting the representation made by the petitioner by order dated 13/1/2020 is not justified. Several submissions were made seeking to contest the decision of the respondent Bank in coming to the conclusion that petitioner's account was not eligible for restructuring under the RBI guidelines. 6.
Several submissions were made seeking to contest the decision of the respondent Bank in coming to the conclusion that petitioner's account was not eligible for restructuring under the RBI guidelines. 6. Submissions were also made that in the first instance holding of the account of petitioner as NPA itself was not justified and that the bank has been unreasonable in taking action against the assets of the directors of the company and, therefore, the action of the bank and the order passed in this regard deserve to be quashed and set aside. 7. I have considered the submission made by learned counsel for the petitioner and have perused the material available on record. 8. The petitioner earlier approached this Court by filing SBCWP no. 18892/2019, similar pleas as raised in the present writ petition were raised, however, when it was found that the petitioner had directly approached the Court without first representing the bank, the petitioner was directed to make a representation in this regard. The petitioner has made a representation and the bank by its impugned order has dealt with the representation in a particular manner, whereby, the representation made and the contentions raised therein have been rejected. 9. Once the several pleas as raised have already been dealt with by the respondent Bank and action has been initiated under the provisions of SARFAESI Act, apparently the petitioner is now required to approach the jurisdictional forum under the provisions of the Act. 10. Hon'ble Supreme Court in Union Bank of India vs. Satyawati Tondon & Others : (2010) 8 SCC 110 inter alia observed as under: "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions.
In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." 11. The said view in the case of Satyavati Tandon (supra) has been followed in several judgments including General Manager, Sri Siddeshwara Cooperative Bank Ltd. vs. Ikbal & Ors : (2013) 10 SCC 83 and recently in Authorized Officer, State Bank of Travancore & Anr. vs. Mathew K.C.: (2018) 3 SCC 85 . 12. In Ikbal (supra) it was observed that the action of the bank under Section 13 (4) of the SARFAESI Act is open to challenge by the aggrieved party under Section 17, which is an efficacious remedy and filing of petition directly under Article 226 of the Constitution of India was not sustainable. Hon'ble Supreme Court in para 27 and 28 observed as under:- "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........" 13.
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........" 13. In view of the above discussion, when the efficacious remedy of appeal qua the action of respondent is available to the petitioner, no case for bypassing the alternative remedy in the present cases is made out. The writ petition has no substance and the same is therefore dismissed.