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2021 DIGILAW 1776 (RAJ)

Rajesh Kumar Barjatiya v. Urban Improvement Trust

2021-09-20

INDERJEET SINGH

body2021
ORDER 1. Since a common question of law is involved in all these writ petitions, they are decided together. The facts of the writ petition No. 13107/2019 is taken into consideration for convenience of this Court. 2 .A prayer has been made by the petitioners in S.B. Civil Writ Petition No.13107/2019 read as under:- "(a) The order dated 25.06.2019 (Annexure-06) may kindly be quashed and set aside; (b) The respondent UIT may be ordered to regularize the property of the petitioners in accordance with the UIT Disposal Rules, 1974. (c) The respondents may be directed not to interfere with the possession of the petitioners with respect to the property in question; (d) Any other appropriate writ or order or direction which is favourable to the petitioners in the facts and circumstances of the case may kindly be granted to the petitioners. (e) Costs of the litigation be allowed in favour of the petitioners". 3. Learned counsel for the petitioners submits that by this writ petition the petitioner has challenged the order dated 25.06.2019, passed by the Debt Recovery Tribunal, Jaipur, whereby, the D.R.T. directed as under:- "Defendants are hereby restrained from transferring alienating giving possession or otherwise dealing with, or disposing off, in any matter whatsoever of abovementioned immovable properties". 4. Brief facts of the case are that respondent No.2 to be referred as Indian Overseas Bank filed an application under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 (tobe referred as Act of 1993) and along with the application they have also filed stay application. 5. Learned counsel for the petitioners submits that the Debt Recovery Tribunal has no jurisdiction to entertain the application. Counsel further submits that the petitioners are not party before Debt recovery Tribunal and the petitioners have received the property by way of gift deed, therefore, only the civil court has jurisdiction to cancel the gift deed. 6. Learned counsel relied upon the the judgment of Hon'ble Supreme Court in the matter of Authorized Officer, State Bank of Travancore & Anr. Vs. Mathew K.C. (2018) 3 SCC 85 , wherein in Para No.15 it has been held as under:- "15. It is the solemn duty of the court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Vs. Mathew K.C. (2018) 3 SCC 85 , wherein in Para No.15 it has been held as under:- "15. It is the solemn duty of the court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the taxpayer's expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tondon, has also not been kept in mind before passing the impugned interim order: (SCC pp. 123-24, para 46). "46. It must be remembered that stay of an action initiated by the State and/or its agencies/ instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. And some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order". 7. Counsel further relied upon the judgment in the matter of Harbanslal Sahnia & Anr. Vs. Indian Oil Corpn. Ltd. & Ors. 2003 (2) SCC 107 , wherein in Para No.7 it has been held as under:- 'So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks). The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have beenallowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings". 8. Learned counsel appearing on behalf of respondents taken a preliminary objection with regard to the maintainability of the writ petition and submitted that the writ petition against the order passed by the D.R.T. under Section 19 of the Act of 1993 is not maintainable. 9. Counsel further submits that against the order passed by the D.R.T. under the Act of 1993, appeal is provided to the Appellate Tribunal under Section 20 of the Act of 1993. 10. 9. Counsel further submits that against the order passed by the D.R.T. under the Act of 1993, appeal is provided to the Appellate Tribunal under Section 20 of the Act of 1993. 10. Counsel further submits that without filing appeal against the order dated 25.06.2019, the petitioner has approached this Court. 11. Counsel further relied upon the judgment passed in the matter of Authorized Officer, State Bank of Travancore & Anr. Vs. Mathew K.C. (2018) 3 SCC 85 , wherein Para No.9 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 v. O.C. Krishnan that: (SCC p. 570, para 6). "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 & 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". 12. In support of his contention, learned counsel further relied upon the judgment in the matter of T.P. Vishnu Kumar vs. Canara Bank, P.N. Road, Tiruppur & Ors. (2013) 10, SCC 652, wherein in Para Nos.10 and 11 it has been held as under:-:- "10. 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. 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 the Tribunal had violated any statutory provisions by rejecting their applications. 11. A 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 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 have 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". 13. Heard learned counsel for the parties and perused the record. 14. These writ petitions filed by the petitioners deserves to be dismissed for the reason firstly, admittedly, the petitioners have alternative remedy of appeal under Section 20 of the Act of 1993 before the Appellate Tribunal against the order dated 25.06.2019. Secondly, while passing the interim order dated 25.06.2019, learned Tribunal has taken into consideration that the defendants have gifted the property in dispute to their close relatives after service of notice by the D.R.T. 15. In that view of the matter, in the facts and circumstances of the present case, I am not inclined to exercise the jurisdiction of this Court under Article 226 of the Constitution of India. 16. Hence, these writ petitions are dismissed.