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2020 DIGILAW 33 (RAJ)

Kamlesh Kumar Jangid v. District Collector, District Dousa Raj

2020-01-03

INDERJEET SINGH

body2020
ORDER : Inderjeet Singh, J. 1. This writ petition has been filed by the petitioners challenging the order dated 08.01.2018 passed by the District Collector, Dausa under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as the 'Act'). 2. Brief facts of the case are that the petitioners have taken a loan of Rs. 4 lacs from the respondent-bank in the year, 2013 by mortgaging their residential house with the respondent-bank. When the petitioners failed to repay the loan amount the proceedings under the Act were initiated against the petitioners and notice under Section 13(2) of the Act was issued to the petitioners by the respondent-bank for repayment of the loan amount. When the petitioners failed to repay the loan amount, the proceedings under Section 14 of the Act was initiated against the petitioners by the respondent-bank on which the District Collector, Dausa passed the order dated 08.01.2018, whereby the respondent-bank was permitted for taking possession of the hypothecated property. Being aggrieved by the order dated 08.01.2018 the present writ petition has been filed by the petitioner. 3. Counsel for the petitioners submitted that the petitioners have taken a loan from the respondent-bank for an amount of Rs. 4 lacs, out of which Rs. 3 lacs have already been repaid by the petitioners. Counsel further submitted that in compliance of the interim order passed by this Court the petitioners have further deposited the amount of Rs. 2 lacs also with the respondent-bank. Counsel further submitted that the order passed by the respondents is a non speaking order and the reply submitted by the petitioners of the notice under Section 13(2) of the Act was not considered by the respondent authority. 4. In support of his contention, counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Harshad Govardhan Sondagar Vs. International Assets Reconstruction Co. Ltd. & Ors. reported in 2014 (125) SCL 378 . 5. Counsel for the respondents submitted that the petitioners are having an alternate statutory remedy of appeal under the Act. Counsel further submits that the petitioners can file an appeal under Section 17 of the Act before the Debts Recovery Tribunal. 6. International Assets Reconstruction Co. Ltd. & Ors. reported in 2014 (125) SCL 378 . 5. Counsel for the respondents submitted that the petitioners are having an alternate statutory remedy of appeal under the Act. Counsel further submits that the petitioners can file an appeal under Section 17 of the Act before the Debts Recovery Tribunal. 6. In support of his contentions counsel for respondent relied upon the judgment passed by the Hon'ble Supreme Court in the matter of Authorized Officer, State Bank of Travancore and Anr. Vs. Mathew K.C. reported in (2018) 3 SCC 85 wherein it has been held as under:- "9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank Vs. O.C. Krishnan and others, (2001) 6 SCC 569 , 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." 10. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding:- "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 the 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." 7. Heard counsel for the parties and perused the record. 8. This writ petition filed by the petitioners deserves to be dismissed, for the reason that the petitioners are having an alternate statutory remedy of filing appeal before District Collector, Dausa under Section 17 of the Act and therefore, I am not inclined to exercise extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India in favour of the petitioner. Hence, this writ petition stands dismissed. 9. All pending applications stand disposed of. 10. In the present facts and circumstances of the case, it is observed that in the event of appeal being filed by the petitioners, the appellate authority is expected to consider the fact regarding pendency of the writ petition before this Court while considering the issue of limitation.