Karnataka High Court
M/S M And S Marketing Comapny And vs State Bank Of India on 8 January, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2025
PRESENT
THE HON'BLE MR. JUSTICE S. G. PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
WRIT APPEAL NO.741 OF 2023 (GM-DRT)
BETWEEN:
M/S. M AND S MARKETING COMAPNY AND
M/S. M AND S BOTTLING COMPANY
OFFICE: PLOT NO.64
STREET NO.1, SAGAR SOCIETY
ROAD NO.2, BANAJARA HILLS
HYDERABAD -500033
REP. BY ITS PROPRIETOR AND PARTENER
JAIPAL REDDY
AGED 68 YEARS.
...APPELLANT
(BY SRI V SRINIVASA RAGHAVAN, SR. COUNSEL FOR
SRI A S VISHWAJITH, ADV.)
AND:
1. STATE BANK OF INDIA
A BODY CORPORATE CONSTITUTED UNDER
THE PROVISIONS OF THE
STATE BANK OF INDIA ACT 1955 AND
THE SUCCESSOR TO STATE BANK OF
TRAVANCORE UNDER THE ACQUISITION
OF STATE OF BANK TRAVANCORE
UNDE ORDER NO.G S R 160 E
DATED 22-02-2017 PASSED BY
2
THE CENTRAL GOVT. UNDER SECTION 35
OF THE STATE BANK OF IDNAI ACT, 1955
(23 OF 1955) AND HAVING INTER ALIA
STRESSED ASSETS MANAGEMENT BRANCH
WITH ADDRESS AT 2ND FLOOR
OFFICE COMPLEX, BUILDING
LHO COMLEX, 65, ST.MARKS ROAD
BENGALURU
REP. BY ITS CHIEF MANAGER
MR. RTAN KUAMR SINHA
AGED ABOUT 57 YEARS
S/O LATE M M PRASAD.
2. M/S. SAMRAT ASHOK EXPORTS LTD.,
3. MR. PRAVEEN CHANDER CHUGH
4. MR. ASHOK CHUGH
5. MR. DAVINDER KUMAR (DIED)
REP. BY SMT. SUSHEELA
6. MR. SHALEEN CHUGH
7. MRS. SARITHA CHUGH
R2 TO R7 ARE DELETED VIDE
ORDER DATED 21.03.2024
8. M/S. KHODAY INDIA LIMITED
REGD. OFF: BREWERY HOUSE
KANAKAPURA ROAD
BENGALURU HAVING
ADMINISTRATIVE OFFICE
NO.612, XV CROSS
SARAKKI I PHASE, 100 FEET ROAD
3
J P NAGAR, BENGALURU-560078
REP. BY ITS DIRECTOR.
9. THE RECOVERY OFFICER- I
DEBTS RECOVERY
TRIBUNAL-I, SECOND FLOOR
JEEVAN MANGAL BUILDING
NO.4, RESIDENCY ROAD
BENGALURU-560025.
...RESPONDENTS
(BY SRI G KRISHNAMURTHY, SR. COUNSEL FOR
SRI BHARATH M.R., AND
SRI CHANDRAKANTH PATIL K., ADVS. FOR R1
SRI GURUMURTHY M., ADV. FOR R8
R9 SERVED & UNREPRESENTED
V/O DATED 21.03.2024, R2 TO R7 ARE DELETED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT PRAYING TO
I) SET ASIDE IMPUGNED ORDER OF THIS COURT 23 MAY
2023 PASSED IN W.P.NO. 9639/2018; II) GRANT THE
COSTS OF THESE PROCEEDINGS AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.12.2024 COMING ON THIS DAY,
S.G.PANDIT J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D.HUDDAR
4
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE S.G.PANDIT) Appellant, respondent No.8 before the learned Single Judge is in appeal under Section 4 of the Karnataka High Court Act, 1961 questioning the learned Single Judge's order dated 23.05.2023 in W.P.No.9639/2018, by which respondent No.1's writ petition is allowed quashing the order dated 31.01.2017 in DRC.No.1709 in O.A.No.521/1999 (Annexure-T) with a direction to proceed with the recovery proceedings.
2. For the sake of convenience, the parties to the appeal would be referred to as they stood before the Writ Court.
3. The respondent No.8 - appellant herein claims that it is a mortgagee of property in question i.e., No.612, 15th Cross, J.P.Nagar Extension, Ward 5 No.57, Bengaluru through mortgage deed dated 25.07.2012 created by respondent No.7. The property in question was originally belonged to one Late Davinder Kumar (respondent No.4). He gifted the said property to his wife Smt.Susheela under registered gift deed dated 15.09.2000. The respondent No.7 purchased the property from Smt.Susheela under registered sale deed dated 19.04.2002. Subsequently, respondent No.7 created a mortgage by way of deposit of title deeds in favour of respondent No.8 for the credit facility availed by it on 25.07.2012. The respondent No.1 had availed certain financial assistance from petitioner - State Bank of India (for short, 'SBI') and as it defaulted in repayment of the loan, SBI initiated recovery proceedings by filing O.A.No.521/1999 before the Debt Recovery Tribunal at Bengaluru (for short, 'DRT'), making respondent Nos.1 to 6 as party respondents before the DRT. The 6 petitioner/SBI had included schedule 'B' to 'E' properties and had sought restraint order from transferring, alienating or otherwise dealing with those properties.
4. Schedule 'E' to the DRT application was the property belonging to respondent No.4, late Davinder Kumar, who was represented by his wife Smt.Susheela. Though the said property was not mortgaged to the Bank, the said property was included since it belonged to Davinder Kumar, who was one of the Director of the first respondent- company. In the said OA, on 18.06.1999 an ad- interim injunction was granted against the respondents therein, restraining them from transferring, alienating or otherwise dealing with or disposing of the same, pending disposal of the OA. 7
5. As the defendant Nos.3 to 6 therein were un-served, paper publication for service of notice was taken on them on 08.11.1999. As stated above, on 15.09.2000, late Davinder Kumar, who was defendant No.4 in OA executed gifted deed in favour of his wife in respect of the property in question. Subsequently, on 25.11.2001, Davinder Kumar died and his wife Smt.Susheela, was brought on record as respondent. The recovery certificate was issued by the DRT on 28.03.2002. Thereafter, Smt.Susheela, LR of the Davinder Kumar under registered sale deed dated 19.04.2002 sold the property in favour of M/s.Khoday India Limited, respondent No.7 herein. When demand notices were issued by the Recovery Officer of the DRT based on the Recovery Certificate, the seventh respondent appeared and filed their objections/obstructions to the proceedings in respect of 'E' schedule property on the ground that they were 8 the bonafide purchasers and that there was no impediment for them to purchase the 'E' schedule property.
6. The seventh respondent also filed separate petition on 21.06.2005 in DCP proceedings before the Recovery Officer seeking deletion of 'E' schedule property under the sale proclamation dated 03.09.2001. The said petition also came to be dismissed by order dated 19.08.2005. By separate order dated 24.08.2005, obstruction petition was also rejected. Thereafter, once again, Sale Proclamation was ordered on 02.09.2005 and the objection filed by seventh respondent was again dismissed. Fresh Sale Proclamation was issued again on 07.08.2012. Again, the seventh respondent filed its objection under Rule 11(1) of II schedule, read with Section 25 and 29 of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'RDBFY Act') to set 9 aside the Proclamation. The objections of M/s.Khoday India Limited was again dismissed by an order dated 18.08.2014. Again, sale Proclamation was issued on 03.11.2014 and in the meanwhile, seventh respondent had filed appeal before the Debts Recovery Appellate Tribunal (for short, 'DRAT') against an order dated 18.08.2014, where its objection petition was rejected. As the DRAT directed statutory deposit, the 7th respondent filed writ petition before this Court challenging the order passed by the DRAT and said writ petition came to be dismissed on 09.06.2015. SLP filed also was dismissed by order dated 31.07.2015.
7. On 06.10.2015, the appellant herein/respondent No.8 before the learned Single Judge, filed an impleading application before the Recovery Officer, DRT, Bengaluru to implead themselves as party respondents claiming that they 10 are the mortgagees under respondent No.7. The said impleading application was allowed by the Recovery Officer by order dated 31.01.2017, with an observation that non-service of order of injunction dated 18.06.1999 on defendant No.4 i.e., late Davinder Kumar, the order of injunction has become redundant and it cannot be enforced. Against the said order dated 31.01.2017, the petitioner filed appeal before the DRT-II on 17.03.2017. Subsequently, by filing a memo, the petitioner/Bank withdrew the appeal filed before the DRT With liberty to pursue its legal remedies as per law before the appropriate Court of law.
8. Thereafter, the petitioner/Bank filed W.P.No.9639/2018 with a prayer to quash the order dated 31.01.2017 passed by the Recovery Officer in DRC.No.1709 in OA.No.521/1999 impleading respondent No.8 as party respondent, with a prayer 11 to direct the Recovery Officer to proceed with the recovery proceedings in DRC.No.1709, in OA.No.521/1999 in respect of the property in question. Learned Single Judge under impugned order, allowed the writ petition quashed the impugned order dated 31.01.2017 in DRC.No.1709 in OA.No.521/1999 with a direction to proceed with the recovery proceedings. Learned Single Judge while allowing the writ petition observed that a pendente lite purchaser would be bound by any order/decree that would be passed against his vendor especially when respondent No.8 claims as mortgagee of schedule property from respondent No.7. Questioning the order of learned Single Judge as well as observations made therein, appellant/respondent No.8 before the learned Single Judge is in appeal.
9. Heard learned senior counsel Sri.V.Srinivasa Raghavan for learned counsel 12 Sri.A.S.Vishwajith for the appellant, learned senior counsel Sri.G.Krishnamurthy for Sri.Bharath M.R., and Sri.Chandrakanth Patil K., learned counsel for respondent No.1 and learned counsel Sri. Gurumurthy M., for respondent No.8. Perused the entire writ appeal papers as well as written arguments and the case-laws on which learned senior counsels placed reliance.
10. Learned senior counsel Sri.V.Srinivasa Raghavan, would contend that the writ petition filed by the petitioner/SBI was not at all maintainable since the statutory appeal filed by SBI was withdrawn by filing a memo to pursue their remedies available under the law. Learned senior counsel invites attention of this Court to averments made in the writ petition at paragraph 29 and submits that the appeal filed before the DRT, challenging the impugned order dated 31.01.2017 in DRC.No.1709 in 13 O.A.No.521/1999 was withdrawn solely on the ground that the DRT has no power to condone the delay in filing the appeal. Learned senior counsel would submit that though liberty is granted to avail any other remedy, a time barred claim under the Statute could not have been entertained under Article 226 of the Constitution of India. In that regard, learned senior counsel places reliance on the decision of the Hon'ble Apex Court in the case of ASSISTANT COMMISSIONER (CT) LTU, KAKINADA AND OTHERS VS. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED1.
11. Further, to contend that Section 5 of the Limitation Act, 1963 (for short, 'Limitation Act') would not be applicable to appeals filed under Section 30 of the Recovery of Debts and Bankruptcy Act, 1993 (for 1 (2020) 19 SCC 681 14 short, 'DRT Act'), learned senior counsel places reliance on the decision of the Hon'ble Apex Court in the case of INTERNATIONAL ASSET RECONSTRUCTION COMPANY OF INDIA LIMITED VS. OFFICIAL LIQUIDATOR OF ALDRICH PHARMACEUTICALS LIMITED AND OTHERS2.
12. Learned, senior counsel Sri.V.Srinivasan Raghavan next contended that in terms of Rule 68B of the Second Schedule to Income Tax Rules, no sale of immovable property is permissible after the expiry of three years from the date of attachment. In that regard, learned senior counsel takes us through Rule 68B as well as the decision of the Hon'ble Apex Court i.e., C.N.PARAMASIVAM AND ANOTHER V/S. SUNRISE PLAZA THROUGH PARTNER AND OTHERS3. Further, learned senior counsel would contend that it 2 (2017) 16 SCC 137 3 (2013) 9 SCC 460 15 is not a pendente lite transfer or principles of lis pendence would apply. It is submitted that the property in question is not mortgaged to the Bank or the Bank had any charge over the property in question. Though, the property was included in the schedule to the OA filed before the DRT to recover the due from the first respondent-company and injunction to restrain alienation was passed on 18.06.1999, the same was not served on the respondent No.4 late Davinder Kumar. Thus, learned senior counsel would pray for allowing the writ appeal by setting aside the order of the learned Single Judge.
13. Per contra, learned senior counsel Sri.G.Krishna Murthy appearing for respondent No.1 would contend that writ appeal filed by the appellant/respondent No.8 is not maintainable, as he claims that he is the mortgagee under respondent No.7 and when the mortgager-respondent No.7 has 16 withdrawn his appeal against the same impugned order of the learned Single Judge. It is submitted that the mortgagee's right is subject to the right of mortgager and the right is coextensive with the right of the mortgagor. Learned senior counsel would submit that if the appellant/respondent No.8 is aggrieved, his remedy is against respondent No.7 and he cannot seek any relief against the petitioner/SBI.
14. Learned senior counsel for respondent No.1/SBI would further contend that Recovery Officer committed grave error in allowing the application of the appellant/respondent No.8 to come on record and also in observing that the injunction order against respondent No.8 is unenforceable. It is submitted that the creation of mortgage by respondent No.7 in favour of respondent No.8 is fraudulent one and the same is to defeat the right of the petitioner/Bank. Since it is a fraudulent one, it is open for the petitioner/Bank to 17 invoke Article 226 of the Constitution of India. When a party suffers fraud or is victim of not adhering to principles of natural justice, one could invoke Article 226 of the Constitution of India and the statutory remedy would not be a bar under those circumstances. Further, he submits that non-est order could be challenged under Article 226 of the Constitution of India. In support of his contention, learned senior counsel places reliance on several decisions including that of WHIRLPOOL CORPORATION VS. REGISTRAR OF TRADEMARKS, MUMBAI AND OTHERS4.
15. Learned senior counsel further contended that the Recovery Officer having rejected the objections filed by respondent No.7/mortgager in respect of the property in question, could not have 4 (1998) 8 SCC 1 18 entertained the appellant's impleading application. Further, learned senior counsel also contends that the gift deed dated 15.09.2000 executed by late Davinder Kumar in favour of his wife Smt.Susheela is subsequent to order of injunction dated 18.06.1999 restraining the parties from dealing with the property in question in OA.No.529/1999. Hence, the principles of lis pendence would apply. Moreover, he submits that though the property in question is not mortgaged to the petitioner/Bank, it had obtained injunction against the said property on 18.06.1999, whereas the mortgage, if at all, in favour of respondent No.8/appellant herein was much subsequently, i.e., 25.07.2012. Therefore, he submits that the Bank will have prior charge over the property in question.
16. Learned senior counsel, for the parties place reliance on several decisions in support of their contentions, but the same would be referred to, if 19 they are necessary to deal with the question, involved in the present appeal.
17. On hearing the learned senior counsel appearing for the parties and on perusal of the writ appeal papers and the decisions of the Hon'ble Apex Court placed on record by either side, the only point which falls for consideration is as to, "Whether the writ petition under Article 226 of the Constitution of India was maintainable by the petitioner/SBI, subsequent to withdrawal of the statutory appeal filed under Section 30 of the DRT Act?"
18. The answer to the above point would be in the negative and the writ petition was not maintainable subsequent to withdrawal of the statutory appeal, for the following reasons: 20
19. The admitted facts are that the petitioner/SBI filed OA.No.521/1999 for recovery of its dues from respondent Nos.1 to 6 and the said OA was allowed on 03.09.2001 and recovery certificate was issued on 28.03.2002 vide DRC.No.1709 in OA.No.521/1999. The property in question was also the subject matter of the above stated OA. It is also an admitted fact that the DRT has passed an interim order of injunction on 18.06.1999 in O.A.No.521/1999 restraining defendant Nos.1 to 6 therein from transferring, alienating or otherwise dealing with Schedule 'B' to 'E' properties.
20. As stated above, the property in question was originally belonged to one late Davinder Kumar and he gifted the property to his wife under registered gifted dated 15.09.2000. The respondent No.5 Smt.Susheela under registered sale date dated 19.04.2002 sold the property in question to 21 respondent No.7. Further, it is claimed that respondent No.7 created mortgage in favour of respondent No.8/appellant herein on 25.07.2012. It is also an admitted fact that late Davinder Kumar, respondent No.5 had not mortgaged the property in favour of petitioner/SBI for the financial assistance obtained by respondent No.1-company. But, however, it was the subject matter of OA.No.521/1999 before the DRT. When the property in question was brought to sale by issuance of Sale Proclamation, objections filed by respondent No.8-M/s.Khoday, India Limited was rejected by the Recovery Officer twice. Thereafter, the mortgagee i.e., respondent No.8, appellant herein filed an application for impleadment, which was allowed under impugned order dated 31.01.2017 with an observation that, for non-service of order of injunction dated 18.06.1999 on defendant No.4 Davinder Kumar, order of injunction has become 22 redundant. The said impugned order was in favour of respondent No.8, appellant herein. Challenging the said order dated 31.01.2017, the petitioner/SBI was before this Court in W.P.No.9639/2018. Learned Single Judge quashed the order, which was in favour of respondent No.8, appellant herein. When the order which was in favour of a party is quashed, he would have certainly locus to challenge the same before the appellate forum. The contention of the petitioner that writ appeal filed by the appellant would not be maintainable when mortgagee has withdrawn the appeal in the facts and circumstances of the case is liable to be rejected. The petitioner/SBI has approached this Court making respondent No.8, appellant herein as party respondent to the writ petition and the said writ petition was allowed quashing the impugned order which was in favour of respondent No.8/appellant herein. When such being 23 the case, certainly respondent No.8/appellant has locus to question the learned Single Judge's order.
21. Admittedly, Section 30 of DRT Act provides for appeal against an order of Recovery Officer. The said provision reads as follows:
"30. Appeal against the order of Recovery Officer. - (1) Notwithstanding anything contained in Section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.
(2) On receipt of an appeal under Sub-
section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under Sections 25 to 28 (both inclusive)."
24
22. In terms of the above provision, any person aggrieved by an order of Recovery Officer within 30 days from the date on which, copy of the order is issued, can prefer an appeal to the Tribunal.
23. The Hon'ble Apex Court in the case of INTERNATIONAL ASSET RECONSTRUCTION COMPANY OF INDIA LIMITED (supra) has made it clear that Section 5 of the Limitation Act would have no application in respect of the appeals filed under Section 30 of the DRT Act and the delay in preferring application under Section 30 of the RDB Act cannot be condoned by application under Section 5 of the Limitation Act. Relevant paragraph 13 reads as follows:
"13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings 25 before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in referring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) ofthc RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act."
24. In the instant case, petitioner/SBI aggrieved by the order dated 31.01.2017 in DRC.No.1709 in O.A.No.521/1999 passed by the Recovery Officer of DRT, filed appeal before the 26 Tribunal under Section 30 of the DRT Act. Admittedly, the said appeal was beyond the period of limitation by 11 days, as averred by the petitioner/SBI Bank itself at paragraph 29 of the writ petition. Thereafter, it filed a memo on 31.01.2018 to withdraw the appeal and the Tribunal on 31.01.2018 passed the following order:
"All PT. This SR is disposed of giving liberty to the Bank as to pursue its legal remedies, as per law, by way of a suit or claim or otherwise, before the appropriate Court of law, against CD/Objectors/defendants, as the law may permit."
25. A reading of the above makes it abundantly clear that the Tribunal disposed of the appeal of the petitioner/Bank with liberty to pursue its legal remedies as per law before the appropriate Court of law, as the law may permit. Thereafter, the present petition is filed.
27
26. Admittedly, there was delay of 11 days in filing the appeal by the petitioner/Bank challenging the impugned order dated 31.01.2017. In terms of the law laid down by the Hon'ble Apex Court in INTERNATIONAL ASSET RECONSTRUCTION COMPANY OF INDIA LIMITED (supra) DRT had no power to condone the delay in preferring the appeal before the Tribunal against the order of the Recovery Officer. Thus, it had become a time barred claim. When the petitioner/Bank had failed to avail a statutory remedy within the time prescribed under Section 30 of the DRT Act and having withdrawn the appeal filed before the Tribunal on the ground that the Tribunal has no power to condone the delay, it could not have invoked the jurisdiction under Article 226 of the Constitution of India before this Court. No doubt, the jurisdiction of the High Court under Article 226 of the Constitution of India is wide enough, but it is not 28 wide enough to entertain a time barred claim. What the petitioner/Bank could not have achieved under the statute cannot be achieved by invoking Article 226 of the Constitution of India. Article 226 of the Constitution of India is meant to do justice to a diligent person and would not come to the aid of a person who is not diligent and who has failed to enforce his right within the time prescribed under the Statute.
27. The Hon'ble Apex Court in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA (supra) was examining the question as to whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India could entertain a challenge to an Assessment Order on the sole ground that statutory remedy of appeal against that order stood foreclosed by law of limitation. While answering the 29 said question at paragraphs 14, 15, 16, 18 and 19, it is held as follows:
"14. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad (AIR 1969 SC 556) and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.((2011) 14 SCC
337)). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors. (AIR 1964 SC 1419), the Constitution Bench of this Court made it amply clear that although the 30 power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: (Thansingh Nathmal case, AIR p. 1423) -
"7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for 31 relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
(emphasis supplied)
15. We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. ((1983) s SCC 433), wherein it is observed 32 that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: (SCC pp.440-41) "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage: 33
'There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC
368) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC
532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
(emphasis supplied) In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors.((1997) 5 SCC 536), this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the 34 legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.
16. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to render the statutory provision otiose. In a recent decision of a three-Judge Bench of this Court in ONGC vs. Gujarat Energy Transmission Corpn. Ltd., ((2017) 5 SCC 42), the statutory appeal filed before this Court was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 35 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises vs. CCE ((2008) 3 SCC 70), CCE vs. Hongo (India) (P) Ltd., ((2009) 5 SCC 79), Chhattisgarh SEB vs. CERC ((2010) 5 SCC 23) and Suryachakra Power Corporation Ltd., vs. Electricity Deptt., ((2016) 16 SCC 152) and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act.
18. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as 36 to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.
19. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corpn. of India Ltd. (2018 SCC OnLine Hyd 21), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) (P) Ltd. vs. Union of India (2015 SCC OnLine Guj
570) and also of the Karnataka High Court in Phoenix Plasts Co. vs. CCE (2013 SCC OnLine Kar 10432). The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach 37 the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction - by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would 38 issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose."
28. The principles laid down by the Hon'ble Apex Court in the above decision would aptly apply on all counts to the present facts of the case. What cannot be achieved by the petitioner/Bank before the DRT while challenging the impugned order dated 31.01.2017 cannot be allowed to be achieved by invoking jurisdiction under Article 226 of the Constitution of India.
29. Learned Senior Counsel for the petitioner/Bank, Sri.G.Krishna Murthy places reliance on several decisions of the Hon'ble Apex Court including that of WHIRLPOOL CORPORATION (supra) to contend that when fraud is alleged, 39 alternate remedy will not operate as a bar and when the order or proceedings are wholly without jurisdiction, Writ Court can entertain the Writ Petition. In the facts and circumstances of the present case, the said principles would have no application. Admittedly, in the instant case, the petitioner/Bank availed alternate remedy by filing appeal under Section 30 of the DRT Act, but belatedly. Having noticed the legal position that the DRT has no power to condone the delay in preferring the appeal, it withdrew the appeal and invoked Article 226 of the Constitution of India. If the SBI had directly invoked Article 226 of the Constitution of India within the time prescribed, then the decision in WHIRLPOOL CORPORATION (supra) and other decisions would have come to the aid of the petitioner/Bank.
30. Since we have come to the conclusion that the writ petition filed by petitioner/Bank itself was not 40 maintainable in the facts and circumstances of the case, we need not go into the other contentions canvassed by respondent No.8, appellant herein that no sale of immovable properties shall be made after expiry of three years, in view of the Rule 68B of Second Schedule of Income Tax Rules, which would be only academic.
31. Learned Single Judge by observing that DRT while disposing of the appeal specifically reserved liberty to avail such other remedy, but failed to examine whether a time barred claim could be entertained under Article 226 of the Constitution of India. If a time barred claim under a statute is entertained under Article 226 of the Constitution of India, then the statutory limitation would become redundant and otiose.
41
32. For the reasons recorded above, the following:
ORDER
(a) Writ appeal is allowed.
(b) Impugned order dated 23.05.2023 in W.P.No.9639/2018 passed by the Learned Single Judge is set aside and the said writ petition stand dismissed with liberty to the petitioner/Bank to avail any other remedy available under law.
SD/-
(S. G. PANDIT) JUDGE SD/-
(RAMACHANDRA D.HUDDAR) JUDGE NC.
CT: BMS