Karnataka High Court
M/S Carreg Commodities Pvt Ltd vs M/S Pnb Housing Finance Limited on 6 July, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY, 2022
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.3341/2022 (GM-RES)
BETWEEN:
1. M/S. CARREG COMMODITIES PVT. LTD.,
OFFICE AT NO.16 62 1,
OMABTHUKERE, ULLAL,
MANGALORE-575020.
ALSO AT SY.NO. NO.72/1A,
THARETHORA COCONUT GARDEN,
NANTHOOR TO PUMPWEL ROAD,
MAROLI VILLAGE, MANGALORE,
DAKSHINA KANNADA 575005.
REP. BY ITS DIRECTORS,
MR. KRISHNAN SHIVAPRASAD,
MRS. JACINTHA PRASAD PANICKER,
MR. SANJED ALOYSIUS PAIS.
2. MR. KRISHNANA SHIVAPRASAD
MAJOR IN AGE
3. MRS. JACINTHA PRASAD PANICKER
W/O DR. PRASAD PANICKKER
AGED ABOUT 56 YEARS
4. MR. SANJED ALOYSIUS PAIS
MAJOR IN AGE
ALL ARE RESIDING AT "EMPRESS",
KADRI TEMPLE ROAD,
KADRI, MANGALURU-575002.
...PETITIONERS
(BY SRI DILRAJ ROHIT SEQUEIRA, ADV.)
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AND:
M/S. PNB HOUSING FINANCE LIMITED
BRANCH OFFICE AT 2ND FLOOR,
KUSHE SADAN, K.R.RAO ROAD,
KODIABAIL, NEAR PVS CIRCLE,
MANGALORE- 575003.
ALSO AT :
NO.05, MATHRU SHREE ARCADE,
100 FEET ROAD,
BTM 2ND STAGE,
BANGALORE-560076,
REPRESENTED BY ITS
AUTHORIZED OFFICER.
...RESPONDENT
(BY SRI FRANCIS XAVIER, ADV. FOR R1
SRI GURUSWAMY, ADV. FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, DAKSHINA KANNADA, MANGALORE IN
CRL.MISC.CASE NO.90/2021, VIDE ORDER DATED 20.09.2021,
UNDER SECTION 14 OF THE SARFESI ACT, ORDERING TO TAKE
PHYSICAL POSSESSION OF THE PETITION SCHEDULE
PROPERTIES PRODUCED AT ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Even though the matter is listed for orders regarding compliance of office objections raised on I.A.No.1/2022, petition is taken up for final disposal with the consent of learned counsel for the parties. 3
2. Heard the learned counsel Sri.Dilraj Rohit Sequeira for petitioners and learned counsel Sri.Francis Xavier for respondent No.1 and learned counsel Sri.Guruswamy for caveator/respondent. Perused the writ petition papers.
3. Petitioners are before this Court challenging the order passed under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for short 2002 Act] in Crl.Misc.No.90/2021 by the Principal Senior Civil Judge and CJM, Mangaluru, Dakshina Kannada. It is submitted that petitioners obtained financial assistance from the respondent-bank and as on this day, petition averments indicates that petitioner was due in a sum of Rs.10,32,41,358.89/- as on 20.11.2019 and on failure to clear the amounts due, respondent-bank initiated recovery proceedings under 2002 Act and Security Interest [Enforcement] Rules, 2002 [for short 2002 Rules].
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4. This Court by order dated 15.02.2022 granted interim order of stay subject to the petitioners paying to the respondent-bank 30% of the amount due in three installments of 10% each. Admittedly, petitioners have not complied the interim order. Petitioners have complied in part by depositing a sum of Rs.65,37,000/- before the respondent-bank. As on the date of interim order, petitioner was due in a sum of more than Rs.10 Crores and 30% therein would come to Rs.3 Crores and petitioners admittedly have not deposited the amount as directed by this Court.
5. Learned counsel for the respondent-bank would submit that amount due from the petitioners is in a sum of Rs.10,32,41,358.89/- as on November-2019 and as on this day, petitioners are due in a sum of more than Rs.12 Crores. Further, learned counsel for respondent-bank would submit that petitioners are provided with alternate remedy of approaching Debts 5 Recovery Tribunal under Section 17 of the 2002 Act. Thus, he prays for dismissal of the writ petition.
6. Petitioners are before this Court challenging the order passed under Section 14 of the 2002 Act. Petitioners are provided with alternate remedy of approaching Debts Recovery Tribunal under Section 17 of the 2002 Act for appropriate relief. When the Statute or Act provides alternate remedy, normally, this Court would not entertain the writ petition under Article 226 of the Constitution of India. Moreover, petitioners have not complied the interim order even though there was time of more than six months for the petitioners to comply the interim order. A person who fails to comply interim order would not be entitled for discretionary relief under Article 226 of the Constitution of India. The Hon'ble Apex Court in the case of PHOENIX ARC PRIVATE LIMITED v/s VISHWA BHARATI VIDYA MANDIR AND OTHERS reported in 2022 SCC OnLine 6 SC 44 at paragraphs 33, 34 and 35 has held as follows on considering Section 17 of the 2002 Act:
"33. In the case of City and Industrial Development Corpn. Vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, it was observed by this Court in paragraph 30 that the Court while exercising its jurisdiction under Article 226 is duty bound to consider whether ................... (c) the petitioner has any alternative or effective remedy for the resolution of the dispute."
34. In the case of Kanaiyalal Lalchand Sachdev and Ors. (supra) after referring to the earlier decisions of this Court in the cases of Sadhana Lodh Vs. National insurance Co. Ltd. and Anr., (2003) 3 SCC 524; Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 and State Bank of India Vs. Allied Chemical Laboratories and Anr., (2006) 9 SCC 252 while upholding the order passed by the High Court dismissing the writ petition on the ground that an efficacious remedy is available under Section 17 of the SARFAESI Act, it was observed that ordinarily relief under Articles 226/227 of the Constitution of India is not 7 available if an efficacious alternative remedy is available to any aggrieved person.
35. Similar view has been expressed by this Court in subsequent decisions in the case of General Manager, Sri Siddeshwara Co- operative Bank Limited & Anr. (supra) as well as in the case of Agarwal Tracom Private Limited (supra)."
In view of the dictum laid down by the Hon'ble Apex Court, I decline to entertain the writ petition with liberty to the petitioners to approach Debts Recovery Tribunal.
Sd/-
JUDGE NC.
CT:bms