Karnataka High Court
P. Krishnappa @ vs Debts Recovery Tribunal on 7 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.32965/2013(GM-DRT)
BETWEEN:
P. KRISHNAPPA @
KRISHNAIAH
S/O LATE PUTTANNA
AGED ABOUT 63 YEARS
NO.509, PATEL PUTTAIAH
INDUSTRIAL ESTATE
DEEPANJALI NAGAR
MYSORE ROAD
BANGALORE ... PETITIONER
SENIOR CITIZEN NOT CLAIM ANY BENIFIT
(BY SRI. G.L VISHWANATH, ADVOCATE)
AND:
1. DEBTS RECOVERY TRIBUNAL
KRISHI BHAVAN
UDSON CIRCLE
BANGALORE - 560 001
BY ITS REGISTRAR
2. STATE BANK OF INDIA
A BANK CONSTITUTED UNDER
THE STATE BANK OF INDIA ACT
HAVING ITS CENTRAL OFFICE AT
MADAME CAMA ROAD
BOMBAY - 400 021
AND LOCAL HEAD OFFICE AT:
2
NO.16, ST. MARKS ROAD
BANGALORE - 560 001
AND A BRANCH AT
NEW TARAGUPET BANGALORE.
3. KARNATAKA MACHINE TOOLS
NO.509, PATEL PUTTAIAH
INDUSTRIAL ESTATE
DEEPANJALINAGAR
MYSORE ROAD
BANGALORE - 560 026
4. S. PUTTASIDDAIAH
S/O SIDDEGOWDA
AGED ABOUT 62 YEARS
NO.509, PATEL PUTTAIAH
INDUSTRIAL ESTATE
DEEPANJALINAGAR
MYSORE ROAD
BANGALORE - 560 026
5. D. MUNIRAJU
S/O DEVANNA
AGED ABOUT 58 YEARS
PANTHARAPALYA
6TH MAIN, MYSORE ROAD
BANGALORE - 560 039 ... RESPONDENTS
(BY SRI. G.N. SATHYAMURTHY, ADVOCATE FOR R2
R-1 & R-5 SERVED BUT UNREPRESENTED.
V/O. DTD. 22/8/16, R3 & R4 ARE HELD SUFFICIENT
THROUGH PAPER PUBLICATION)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH OR
SET ASIDE THE IMPUGNED ORDER DT.17.6.2013 PASSED BY
DEBTS RECOVERY TRIBUNAL, KARNATAKA IN O.A.NO. 719/1997
AT ANNX-A INSO FAR AS IT APPLIES TO THE PETITIONER AND
ETC.,
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THIS PETITION COMING ON FOR FURTHER ORDERS
PHYSICAL HEARING / VIDEO CONFERENCING HEARING
(OPTIONAL), THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition, petitioner has prayed for the following reliefs:-
a) Issue a writ of certiorari or any other writ, order or direction thereby quashing and/or setting aside the impugned order dated 17.06.2013 passed by Debts Recovery Tribunal, Karnataka in O.A.No.719/1997 (Annexure-A) insofar as it applies to the petitioner.
b) To issue a writ of mandamus directing respondent No.1 to consider the application filed by the petitioner vide Annexure-E in O.S.No.3662/1993 and pass appropriate orders thereon in the interest of justice.
c) To grant such other relief/s as this Hon'ble Court may deem fit to grant in the circumstances of the case in the interest of justice.
2. The second respondent-Bank filed a recovery suit in O.S.No.3662/1993 before the City Civil Court, Bengaluru against the Principal Debtors-respondent Nos.3 to 5 including Guarantor- petitioner. Written statement was not filed on behalf of defendant Nos.1 and 2 (Principal Debtors). On 29.01.1994, a memo was filed in O.S.3662/1993 relating to consenting decree to be passed against Principal Debtors. The memo was recorded 4 and decreed was passed on 29.01.1994. The petitioner who is defendant No.3 was stated to have not even served and in his absence decree has been passed. Thus, he had filed an application under Sections 152 and 153 read with Section 151 of CPC in O.S.No.3662/1993. Petitioner had the benefit of stay from 17.04.1999. At this juncture, O.S.No.3662/1993 and other related papers were transmitted to Debts Recovery Tribunal. Debts Recovery Tribunal re-numbered the original suit as O.A.No.719/1997 and it was decided on 17.06.2013. Thus, petitioner feeling aggrieved and dissatisfied with the order of Debts Recovery Tribunal presented this petition.
3. Learned counsel for the petitioner vehemently contended that writ petition is maintainable even though petitioner has a statutory remedy. He has cited the following decisions:
1. Krishnegowda Vs. Karnataka State Co-
operative Apex Bank Ltd., in W.A.No.120/1991 decided on 14.06.1994 (paragraph 5).
2. Nandhi Minerals Vs. State of Karnataka and Others in Misc.W.No.10870/2009 in W.P.No.18174/2004 (GM-MMS) decided on 12.12.2011 (Paragraphs 5 to 7).
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3. Suresh Chandra Tewari Vs. District Supply Officer and Ors. in Civil Misc. Writ Petition No.7541/1992 decided on 30.03.1992 (Paragraph 2)
4. S.N.Srinivas Murthy and Ors. Vs. The Corporation of the City of Bangalore in W.P.Nos.16836 to 47/1991 decided on 03.07.1997.
4. On merits, it was submitted that Debts Recovery Tribunal has failed to appreciate that the petitioner was not heard while passing a consenting decree on 29.01.1994 by the Civil Court. That apart, the matter is pending consideration on the judicial side from 1993 to this day. Therefore, petitioner is entitled to relief of setting aside the order dated 17.06.2013 of the Debts Recovery Tribunal while remanding the matter to the Debts Recovery Tribunal for fresh disposal or in the alternative to refer the matter to Jurisdictional trial Court to decide O.S.No.3662/1993 afresh.
5. Learned counsel for the petitioner pointed out from Section 134 of the Indian Contract Act, 1872 and he has cited paragraph 7 of "The Law Relating To Guarantees" in Fourth Edition of S.N.Gupta. Paragraph 7 reads as under:-
"7. Consent Decrees-When discussing Section 134 of the Indian Contract Act, 1872, we find that it relates to any act or omission of the creditor and the discharge of the debtor without the consent of the 6 surety destroys the liability of the surety though he had signed as a co-executant where the creditor knew that he was a surety. Section 134 discharges a surety if the legal consequences of the creditor's act discharges debtor. In this connection we can also refer to a case where a decree is against the principal debtor and the surety is passed and the principal debtor compromises with the creditor without the consent of the surety. The effect is that a surety is discharged."
6. Learned counsel for the respondents submitted that Debts Recovery Tribunal has taken note of the grievance of the petitioner and it has considered in paragraphs 10 and 11 of the order dated 17.06.2013. Thus, petitioner has not made out case so as to interfere with the order of the Debts Recovery Tribunal and consequential relief sought in the present petition.
7. Heard the learned counsel for the parties.
8. Question for consideration in present petition is "Whether writ petition is maintainable or not in view of the fact that petitioner has statutory remedy of appeal under SARFAESI Act, 2002 or against decree dated 29.01.1994 before appropriate forum?" Further, "Whether the decree dated 29.01.1994 passed in O.S.No.3662/1993 would be entertained in a writ jurisdiction or not?"
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The petitioner has a statutory remedy of appeal before the Debts Recovery Appellate Tribunal against the order of the Debts Recovery Tribunal under Section 18 of the SARFAESI Act, 2002.
In not exhausting the statutory remedy, petitioner's counsel cited decisions (supra).
9. As regards maintainability of the present petition, the following three decisions are relevant:-
(i) UNITED BANK OF INDIA vs SATYAWATI TONDON AND OTHERS reported in (2010)8 SCC 110 (Para.42)
(ii) AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER Vs MATHEW K C reported in AIR 2018 SC 676 (Para.17)
(iii) ICICI BANK LTD. Etc. Etc. VS UMAKANTA MOHAPATRA ETC. ETC. decided in Civil Appeal No.10243-10250/2018 dated 05.10.2018.
10. The Apex Court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 at paragraph 20 has held as under:
"20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s.Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168}, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-8
"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public policy or barred by any valid law; and host of other factors.
(g) Cost and such other relief deems fit to grant under the circumstances of the case, in the interest of justice and equity.
(Emphasis supplied) Further, recently in the case of 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.
11. In the aforesaid decisions, Apex Court examined elaborately relating to availability of remedy under the SARFAESI 9 Act, 2002. Further, while entertaining writ petition what are the ingredients to be taken note. One of the ingredient is relating to alternative remedy. In view of the aforesaid decisions, the cited decisions on behalf of the learned counsel for the petitioner is hereby distinguished. In the cited decision namely in the case of Sri.S.N.Srinivasa Murthy is concerned, it is admitted petition whereas in the present case, the present petition is not admitted matter.
12. Judicial orders of civil Court are not amendable to writ jurisdiction under Article 226 as held in the case of Radhey Shyam and another Vs. Chhabi Nath and others reported in (2015) 5 SCC 423. Further, juridical discretion can be exercised by Court(s) when there are two or more possible lawful solutions. However, Court cannot give directions contrary to Statute or Rules as held in the case of Anurag Kumar Singh and others Vs. State of Uttarakhand and others reported in (2016) 9 SCC 426 (paragraph 16).
13. In view of these facts and circumstances of the case, petitioner has not made out case so as to ignore the statutory remedy/alternative remedy available to the petitioner. 10 Interference with the decree dated 29.01.1994 passed in O.S.No.3662/1993 is concerned, the writ petition is not the remedy for the petitioner, he has remedy before the Civil Court or Appellate Court to rectify the decree dated 29.01.1994 under Section 96 of CPC, if there are any error in the decree and not the writ jurisdiction.
The contentions that Section 134 of the Indian Contract Act, 1872 read with paragraph 7 cited supra cannot be appreciated in the present writ petition, since petitioner has a statutory remedy as discussed supra. Accordingly, writ petition stands dismissed.
At this juncture, learned counsel for the petitioner submitted that petitioner is likely to approach Debts Recovery Appellate Tribunal against the order of the Debts Recovery Tribunal, if it is so the time spent in the present petition shall be taken into consideration for the purpose of condonation of delay in presenting the memorandum of appeal before the Debts Recovery Appellate Tribunal under Section 14 of the Limitation Act, 1963.
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At this stage, learned counsel for the petitioner sought for extension of interim order which was granted on earlier occasions. Such request cannot be accepted for the reasons that once the main matter is decided interim order merges with the final order, which is supported by the Apex Court decision in the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and Others reported in AIR 2010 SCC 3745 in paragraph 15. More over, writ petition itself is not maintainable. Writ petition is maintainable against the order passed by the DRAT and such matter would be heard by the Division Bench of this Court.
Sd/-
JUDGE KPS