Karnataka High Court
Sri K Ramesh Reddy vs Ing Vyshya Bank Ltd., on 10 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.24584/2016(GM-DRT)
BETWEEN:
SRI. K.RAMESH REDDY
S/O K.ASHWATH REDDY,
AGED ABOUT 38 YEARS,
R/O NO.255,
BOODUGUPPA POST,
SIRUGUPPA TALUK - 583 121
BALLARI DISTRICT. ... PETITIONER
(BY SRI. KESAVAREDDY M., ADVOCATE)
AND:
1. ING VYSHYA BANK LTD.,
SIRUGUPPA BRANCH,
SRI.PANCHAMUKHI KRUPA BUILDINGS,
ADONI ROAD,
SIRUGUPPA - 583 121
BALLARI DISTRICT,
REPRESENTED BY ITS BRANCH MANAGER,
SRI RAMESH RAO S.V.
2. SRI K.VENKATA REDDY
S/O RAMALINGA REDDY,
AGED ABOUT 40 YEARS,
R/O H.HOSAHALLI,
SIRUGUPPA TALUK - 583 121
BALLARI DISTRICT. ... RESPONDENTS
(R-2 SERVED BUT UNREPRESENTED
VIDE ORDER DATED 09.01.2018
NOTICE TO R-1 HELD SUFFICIENT)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 10.02.2016 IN I.R.NO.3699/2012 ON
THE FILE OF THE DEBT RECOVERY TRIBUNAL VIDE ANNEXURE-
D ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition petitioner has prayed for the following reliefs:
a. Quash the impugned order dated 10.02.2016 in I.R.No.3699/2012 on the file of the Debt Recovery Tribunal which is produced as Annexure-D to this writ petition.
b. Set aside the ex-parte order of the Debt Recovery Tribunal dated 28.08.2012 in O.A.No.510/2012 produced as Annexure-A to this writ petition.
c. And direct the DRT to hear the matter on merits by providing an opportunity of hearing to the petitioner.
2. Petitioner has a statutory remedy under Section 20 of Recovery of Debts and Bankruptcy 3 Act, 1993 (for short 'Act, 1993'). Learned counsel for the petitioner vehemently contended that the impugned order suffers in not providing principles of natural justice to the petitioner and notice was not served. On this issue, petitioner need not exhaust remedy as held by the Apex Court from time to time. Thus, he has presented this petition and writ petition is maintainable.
3. In view of the following three decisions, petitioner has a statutory remedy under Section 20 of the Act, 1993:-
i) Canara Bank Vs. P.Selathal and Others reported in 2020 SCC Online SC 245 in paragraph 32 has held as under:-
"32. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11 of the CPC. As observed hereinabove, the main prayer in the suits is challenging the decree passed by the DRT. The decree passed by the learned DRT and even the order passed by the Recovery Officer are appealable under Section 20 of the RDDBFI Act. In the case of O.C. Krishnan (supra), this Court has observed and held that in view of the alternate remedy of preferring the appeal before the DRAT, the petition under Article 227 challenging the order passed by the DRT shall not be maintainable, without exhaustion of 4 such remedy. In the case of O.C. Krishnan (supra), decree passed by the DRT was challenged in a petition under Article 227 of the Constitution of India. The High Court allowed the petition. While allowing the appeal of the bank - Punjab National Bank, this Court has observed that without exhaustion of the remedies under the RDDBFI Act, the High Court ought not to have exercised its jurisdiction under Article 227. While holding so, in paragraph 6, this Court has observed and held as under:
"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."
ii) G.Siva Prasada Reddy and Company and Another Vs. Presiding Officer, Debts Recovery Tribunal of A.P. and Karnataka, Bangalore and 5 Others reported in 1998 (3) A.P.L.J. 446 (HC) in paragraph 9 has held as under:-
"9. As against the decrees passed by the first respondent-Debts Recovery Tribunal, Bangalore, the "Recovery of Debts due to Banks and Financial Institutions Act, 1993" envisages filing of appeals before the Debts Recovery Appellate Authority at Mumbai. Strangely, when there is a statutory appellate forum constituted for deciding the appeals arising out of the decrees and judgments passed by the Debts Recovery Tribunal-first respondent, petitioners without taking recourse to filing an appeal against the decree and judgment passed in O.A. No. 1033 of 1995 have approached this Court under Article 226 of the Constitution of India. The explanation offered by the petitioners for not approaching the Statutory Appellate Forum at Mumbai is all the more baffling."
iii) Assistant Commissioner (CT) LTU, Kakinada and ors. Vs. M/S Glaxo Smith Kline Consumer Health Care Ltd., in Civil Appeal No.2413/2020 (Arising out of SLP (C) No.12892/2019) reported in 2020 SCC Online SC 440 elaborately discussed and held that party must avail statutory remedy and writ petition is not the remedy.
4. Writ petition is not maintainable against Debts Recovery Tribunal's order. Writ petition is maintainable against Debts Recovery Appellate Tribunal's order. That 6 too, against Debts Recovery Appellate Tribunal writ petition would be heard by Division Bench in terms of notification issued by this Court on administrative side. Apex court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 (paragraph-20) has examined the issue regarding non exhausting statutory remedy of appeal. Thus, petitioner has not made out a case. Accordingly, writ petition stands dismissed.
5. If such an appeal or application is filed before the appropriate forum, such forum is directed to take note of the time spent by the petitioner in the present petition for the purpose of condonation of delay in filing appeal or application.
Sd/-
JUDGE BS