Rajasthan High Court - Jaipur
Mahendra Kumar Son Of Late Shri Jwala ... vs State Bank Of India on 23 January, 2020
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 17670/2018
Mahendra Kumar Son Of Late Shri Jwala Prasad Tibra, Aged
About 60 Years, By Caste Agarwal, Resident Of Ward No. 19,
Infront Of Gadia Bhawan, Modi Road, Jhunjhunu (Rajasthan)
----Petitioner
Versus
1. State Bank Of India, Through Its Chairman State Bank Of
India, State Bank Bhawan, 26Th Floor, Madan Cama
Road, Mumbai (Maharasthra)
2. Chief Manager (Authorised Officer), State Bank Of India,
Branch - Sardul Market Jhunjhunu (Rajasthan)
3. M/s. Asahi Infrastructure And Projects Limited, Room No.
302, 3Rd Floor, Yashwant Shopping Centre, Carter Road
No.7, Opposite Railway Station, Borivali (E), Mumbai
----Respondents
For Petitioner(s) : Mr. Vishal Soni on behalf of Mr. Rajendra Kumar Soni For Respondent(s) : Mr. Alok Garg HON'BLE MR. JUSTICE INDERJEET SINGH Order 23/01/2020 This writ petition has been filed by the petitioner with the following prayers:-
"I. By issuing an appropriate writ, order or direction, the impugned order dated 03.08.2018 in so far as it relate to attaching the property of the petitioner local guarantor giving collateral security for auction before realizing the outstanding reaming loan amount from primary security of borrower respondent No.3 is concerned, be quashed and set aside in so far as it relates to be petitioner and it may kindly be ordered that remaining outstanding loan amount be first recovered from primary security of borrower respondent No.3 before attaching and (D.B. SAW/146/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 16/02/2020 at 10:42:24 AM) (2 of 5) [CW-17670/2018] auctioning the property of the petitioner guarantor.
II. By issuing an appropriate writ, order or direction, any other order or relief which this Hon'ble Court in the facts and circumstances of the case deems just and proper be passed in favour of humble petitioner.
III. Cost of the writ petition be quantified in favour of petitioner."
Counsel for the petitioner submitted that the petitioner has challenged the order dated 03.08.2018 issued by the respondent-
bank under Section 13(4) of the SARFAESI Act, 2002. Counsel further submitted that the respondents have issued proceedings against the petitioner under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which is in violation of the guidelines issued by the Reserve Bank of India dated 01.07.2015. Counsel further submitted that the respondent-bank is not recovering the loan amount from a number of borrowers and has wrongly initiated proceedings against the petitioner who is only a guarantor.
In support of his contention counsel relied upon the judgment passed by the Supreme Court in the matter of Karnataka State Industrial Vs. Cavalet India Ltd. And Ors.
reported in 2005(4) SCC 456 Counsel appearing on behalf of the respondent-bank submitted that since the petitioner is having an alternative statutory remedy of appeal against the order dated 03.08.2018 before the Debts Recovery Tribunal, the present writ petition may not be entertained by this Court. In support of his contention counsel relied upon the judgment passed by the Hon'ble Supreme Court in the matter of State Bank of Travancore and anr. Vs. (D.B. SAW/146/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 16/02/2020 at 10:42:24 AM) (3 of 5) [CW-17670/2018] 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 (D.B. SAW/146/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 16/02/2020 at 10:42:24 AM) (4 of 5) [CW-17670/2018] 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."
Counsel further relied upon the judgment passed by the Division Bench of this Court in the matter of M/s. HCL Infosystems Limited Vs. State of Rajasthan reported in 2019(4) WLC (Raj.) 708, wherein it has been held as under:-
"In a very recently delivered judgement by the Supreme Court in Union of India (UOI) & Ors. vs. Coastal Container Transporters Association & Ors.-2019 (3) Scale 758 (SCC citation), in para 19 of the report, the Supreme Court held that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court (the Supreme Court), where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice.
Applying the ratio of all the aforesaid judgement, especially in Coastal Container Transporters Association, supra, we are inclined to hold that the present one cannot be said to be a case where the Assessing Officer completely lacked the jurisdiction in passing the reassessment order. It certainly cannot be said to be a case of inherent lack of jurisdiction. Aside of the fact whether or not the re-
assessment order could have been legally passed, the appellants cannot be allowed to contend that such orders have been passed (D.B. SAW/146/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 16/02/2020 at 10:42:24 AM) (5 of 5) [CW-17670/2018] dehors the principles of natural justice. Admittedly, show cause notices were served on each of the appellants prior to passing of the impugned reassessment orders. The case of the appellants cannot also said to be fall in any category of exceptions including about breach of any fundamental right where the remedy available in the Act of 2003 under the scheme of the Statute cannot be considered as effective and efficacious, particularly in the face of the fact that similarly situated assessees in many such identical cases, including some of the petitioners, have already approached the appellate authority and first appellate authority and thereafter the Tax Board and almost in all of them, penalty has been waived and number of sales tax revisions, as referred to above, then have been filed by the assessee before this Court, which are still pending. Moreover, as has been argued by learned counsel for the revenue that in one matter, the Tax Board has decided in favour of the assessee, apart from penalty, even on the question of tax and interest and subsequently when many other appeals were filed before the Board, a reference on the questions of law involved in these cases has been made to the Full Bench of the Rajasthan Tax Board. This is therefore an additional reason for this Court to refrain from entertaining the writ petition as the Rajasthan Tax Board has yet to take an authoritative view in the matter on the Full Bench reference."
Heard counsel for the parties and perused the record.
In my considered view, this writ petition filed by the petitioner deserves to be dismissed as the petitioner is having alternative statutory remedy, therefore, considering the facts and circumstances of the present case, in view of the judgment passed by Hon'ble Supreme Court in the matter of State Bank Travancore as well as M/s. HCL Infosystems Limited (supra), I am not inclined to interfere in the matter.
Hence, this writ petition is dismissed.
(INDERJEET SINGH),J Arun/61 (D.B. SAW/146/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 16/02/2020 at 10:42:24 AM) Powered by TCPDF (www.tcpdf.org)