Karnataka High Court
K. Manjunath vs The Authorised Officer on 17 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1766
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL 2018
BEFORE
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION Nos.13711-13712/2018 (GM-DRT)
BETWEEN:
1. K. MANJUNATH,
S/O. KRISHNAPPA,
AGED ABOUT 50 YEARS.
2. SMT. MANJULA,
W/O. SRI K. MANJUNATHA,
AGED ABOUT 40 YEARS.
BOTH ARE RESIDING AT
NO.6, NO.26/1, (B),
KRISHNAPPA COMPOUND,
JARAGANAHALLY,
J. P. NAGAR POST,
BANGALORE. ... PETITIONERS
(BY SRI M. A. RAJENDRA, ADVOCATE)
AND:
THE AUTHORISED OFFICER /
THE GENERAL MANAGER,
MALLESHWARAM CO-OPERATIVE BANK LTD.,
NO.102, 7TH CROSS, MALLESHWARAM,
BANGALORE-560 003. ... RESPONDENT
(BY SRI K. V. LOKESH, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDERS PASSED BY THE HON'BLE DRT, BANGALORE ON
26.02.2018 IN S.A.NO.339/2017-ANNEXURE-A; TO CONSIDER THE
REQUEST OF THE PETITIONERS, TO SETTLE THE ENTIRE DUES AS PER
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OTS SCHEME OFFERED WITHOUT ANY DISCRIMINATION AND
DISCRETION ON ISSUANCE OF MANDAMUS AND RESPECTFULLY
PRAYS TO PASS ORDERS FOR RESTORATION OF THE POSSESSION.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are aggrieved by the order, dated 26.2.2018, passed by the Debts Recovery Tribunal II, Bengaluru, whereby the appeal filed by the petitioners has been dismissed by the learned Tribunal.
2. Briefly the facts of the case are that on 14.12.2007, the petitioners had availed housing loan of `56,72,000/- from the Malleshwaram Co-operative Bank Limited, the respondent. The loan was sanctioned on 29.1.2007. While the petitioner No.1, Mr. K. Manjunath, is the principle borrower, the petitioner No.2, his wife, Smt. Manjula, is the guarantor. According to the petitioners, while they were engaged in steel business, due to heavy losses, they could not repay the loan amount as per the re-payment schedule. According to the petitioners, although they have paid about `45,00,000/-, about `20,00,000/- still needs to be paid to the respondent - Bank. Furthermore, according to the petitioners, they are ready and willing to clear the entire loan, in 3 case the Bank were willing to waive the compound, penal interest, and other charges. Furthermore, according to the petitioners, the respondent approached the 44th ACMM Court by filing its application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short), for taking over the property belonging to the petitioners with the help of the police. By order, dated 7.10.2017, the learned Court allowed the application filed by the Bank, and directed the jurisdictional Police Station House Officer to give necessary assistance to the respondent. Therefore, the petitioners filed an appeal against the order, dated 7.10.2017, before the learned Tribunal. By the impugned order, dated 26.2.2018, the learned Tribunal has dismissed the appeal filed by the petitioners. Hence, these petitions before this Court.
3. This Court has raised a pointed query to Mr. M. A. Rajendra, the learned counsel for the petitioners, as to why the efficacious alternative remedy, provided under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993 ('the Act' for short) has not been taken recourse of, instead of filing the present writ petition before this Court?
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4. The learned counsel submits that the learned Tribunal has failed to appreciate the facts of the case, position of law, and has violated the rights of the petitioners under the principles of natural justice. Thus, the petitioners are justified in avoiding the efficacious alternative remedy, and in approaching this Court under the writ jurisdiction.
5. On the other hand, Mr. K. V. Lokesh, the learned counsel for the respondent, pleads that since the petitioners were duly heard by the learned Tribunal, the question of violation of principles of natural justice does not even arise. As far as allegations of mis-appreciation of facts, and law are concerned, the same pleas can be raised before the learned DRAT by filing an appeal under Section 20 of the Act. According to the learned counsel for the respondent, this writ petition is not maintainable as an efficacious alternative remedy does exist.
6. Heard the learned counsel for the parties, and perused the impugned order.
7. In catena of cases, the Hon'ble Supreme Court is of the opinion that if an efficacious alternative remedy has been provided by law, the litigant is required to take recourse to 5 efficacious alternative remedy before approaching this Court under Article 226 of the Constitution of India. Since the writ jurisdiction is a discretionary jurisdiction, the High Court imposes self-limiting principles upon its power. One of the restrictions is that in case efficacious alternative remedy does exist, this Court will not exercise its writ jurisdiction under Article 226 of the Constitution of India.
8. Section 20 of the Recovery of Debts and Bankruptcy Act, 1993, is as under:
"20. Appeal to the Appellate Tribunal.-- (1) Save as provided in sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.
(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.
(3) Every appeal under sub-section (1) shall be filed within a period of thirty days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:6
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), or under sub-section (1) of Section 181 of the Insolvency and Bankruptcy Code, 2016 the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.
(6) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal."
9. Therefore Section 20 of the Act clearly provides an efficacious alternative remedy to the petitioners, in case they are aggrieved by any order passed by the DRT. Since in the present case the petitioners are aggrieved by an order passed by the learned Tribunal, the petitioners should have taken recourse to the efficacious alternative remedy instead of invoking writ jurisdiction by this Court.
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10. Since the petitioners were duly heard by the learned Tribunal, the learned counsel for the petitioners is unjustified in claiming that the petitioners' rights under the principles of natural justice have been violated.
11. As far as the contentions with regard to the mis- appreciation of evidence, or with regard to mis-appreciation of law, are concerned, these pleas can easily be raised before the learned DRAT.
12. Therefore, as the petitioners do have an efficacious alternative remedy, this Court is of the opinion that the writ jurisdiction should not be invoked by this Court. Hence, this petition is dismissed.
Sd/-
JUDGE MD