Tripura High Court
Sri Krishna Kumar Roy vs The Regional Manager on 25 July, 2018
Bench: Ajay Rastogi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.603/2018
Sri Krishna Kumar Roy, S/O. Late Sunil Ch. Roy, Resident of
Village-Kunjaban, 79 Tilla, P.O. Kunjaban, P.S. New Capital
Complex, Agartala, Tripura West, Pin-799006.
----Petitioner(s)
Versus
1. The Regional Manager, State Bank of India, Having its address
at Bijoy Kumar Chowmohani, Krishnanagar, P.O. Agartala, P.S.
West Agartala, District-West Tripura, Pin-799001.
2. The Chief Manager (CR & NPA), RBO Agartala South, Agartala,
Tripura West.
3. State Bank of India, RBO RMME Cell, Sakuntala Road Extension,
Agartala, Tripura West, Pin-799001.
4. The Branch Manager, State Bank of India, Branch Code
No.4544, A.D. Nagar Branch, Agartala, Tripura West.
5. Sri Uttam Kumar Ghosh, S/O. Late Chidulal Ghosh, Resident of
Village-East Badharghat, (Sree Pally), near Chandimata Club, P.O.
& P.S. A.D. Nagar, District-West Tripura, Pin-799003.
----Respondent(s)
For the Petitioner(s) : Mr. A. De, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
HON'BLE MR. JUSTICE ARINDAM LODH
Order
25/07/2018
The instant writ petition has been filed by the guarantor who indisputably on equitable mortgage in favour of the borrower extended him cash credit facilities.
2. As per the pleadings on record, the secured creditor extended/sanctioned the cash credit facilities in favour of the borrower for a sum of Rs.95,00,000/- on 04.7.2016 on the property of the guarantor was under equitable mortgage and Page 2 of 6 accordingly, Rs.60,00,000/- was disbursed to the borrower (respondent no.5).
3. After the account of the borrower became NPA, proceedings u/Sec.13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act) was initiated against the borrower/guarantor.
4. Indisputably, in the instant case, the borrower/guarantor both were served with the notice u/Sec.13(2) of the Act with an opportunity afforded to file their written representation/objection, if so advised, u/Sec.13(3)(A) of the Act and after taking note of the written objections, if submitted the secured creditor was at liberty to proceed u/Sec.13(4) of the Act with the assistance of the District Collector of taking possession of the mortgaged property on which security interest was created and to proceed further including auctioning of the property under mortgage as mandated under law.
5. It reveals from the record that the secured creditor proceeded to under Rule 8(1) of the Rules to take possession of the mortgaged property over which the security interest was created of the guarantor on whose security the loan was sanctioned & disbursed to the borrower. At this stage, the petitioner approached this court with a grievance that although the secured creditor can proceed for recovery of the outstanding loan but unless the property of the borrower from all means available at his command has to be first taken care of to settle the outstanding loan of the borrower and still if failed to satisfy, the Page 3 of 6 balance could be recovered from the guarantor and since this mechanism has not been followed by the secured creditor, the decision of the secured creditor in taking possession of the mortgaged property on which security interest was created of the guarantor under Annexure-2 is in contravention of the mandate of Act 2002.
6. Earlier when the matter came before this court, we directed the petitioner under order dt.26.6.2018 to take instructions and file affidavit as to what steps were taken by the secured creditor against the borrower to recover the outstanding loan amount after the borrower became defaulter under the Act of 2002.
7. In compliance of our order, affidavit has been filed and the statement made is wholly vague and it does not disclose about the proceedings which have been initiated by the secured creditor against the borrower or guarantor, the petitioner herein. It reveals that the proceedings have been initiated under Act 2002 but the petitioner is showing ignorance of such proceedings and it goes without saying that the liability of the guarantor is coextensive with that of the borrower and it is open for the secured creditor to recover the outstanding dues either from the borrower/guarantor and the secured creditor is at liberty to proceed against the borrower/guarantor or against both under the Act 2002. Any person if aggrieved including borrower/guarantor against the proceedings initiated under the Act, 2002 is at liberty to file an application u/Sec.17 of the Act, 2002.
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8. Counsel for the petitioner has placed reliance on two judgments of this court viz. WP(C) No.169/2015 (Narendra Chandra Das vs. The State of Tripura & others) decided on 26.8.2015 and WP(C) No.157/2016 (Sri Tapash Karmakar vs. The State of Tripura & others) decided on 19.7.2016 but on perusal of the same we find that these judgments have no application with regard to the present case in hand.
9. The Apex Court in the judgment in United Bank of India vs. Satyawati Tondon & others, (2010) 8 SCC 110 has come heavily upon the courts interfering in the matters of SARFAESI Act where an inbuilt mechanism has been provided to avail the statutory remedy and interference by courts u/Art.226 of the Constitution of India in such matters where an inbuilt mechanism has been provided has been deprecated. The Apex Court held 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 code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage Page 5 of 6 constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, 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.
44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self- imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.
45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."
10. We too are of the view that when a statutory remedy is available to the petitioner u/Sec.17 of the Act, 2002, it may not be advisable for this court to exercise its inherent jurisdiction u/Art.226 of the Constitution of India.
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11. Consequently, we find no substance in the petition which is accordingly dismissed. The petitioner is at liberty to avail remedy provided u/Sec.17 of the Act of 2002, if so advised. No costs.
(ARINDAM LODH), J (AJAY RASTOGI), CJ Certificate:- All corrections made in the judgment/order have been incorporated in the judgment/order. Pulak