Karnataka High Court
Sri R Sundar Raju vs The Registrar on 9 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.2758/2016(GM-DRT)
BETWEEN:
SRI R. SUNDAR RAJU,
S/O RAJANNA,
AGED ABOUT 54 YEARS,
R/A NO.16 AND 17, 1ST MAIN,
4TH CROSS, NAVODAYA NAGAR,
KOTHANUR VILLAGE,
UTTARAHALLI HOBLI,
BANGALORE - 560 076 ... PETITIONER
(BY SRI. RAJAGOPAL M.R., ADVOCATE)
AND:
1. THE REGISTRAR
DEBTS RECOVERY TRIBUNAL,
KARNATAKA, KRISHI BHAVAN,
HUDSON CIRCLE,
KEMPEGOWDA ROAD,
BANGALORE - 560 009
2. ICICI BANK LIMITED
NO.4, 101, MYTREE CENTRE,
HOSUR ROAD, BOMMANAHALLI,
BANGALORE - 560 068,
BY ITS COLLECTION MANAGER
3. M/S DARSH GLOBAL SERVICES
REPRESENTED BY ITS PROPRIETOR,
SRI. RAJESHWARAN, NO.3/19,
2ND CROSS, WHEELER ROAD,
FRAZER TOWN, BANGALORE - 560 005
2
4. M/S NATIONAL COLLATERAL MANAGEMENT
SERVICES LIMITED., NO.954
GAYATHRI TOWERS,
APPASAHEB MARATHE MARG,
PRABHADEVI, MUMBAI,
REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
SRI. VIVEK THOOPAL - 400 008
... RESPONDENTS
(BY SRI. SREEDEVI K.B. FOR SRI. JAI PATIL &
SRI. DILEEP .D., ADVOCATES FOR R2
SRI.S.K.M. SHETTY FOR R-4
R-1 SERVED BUT UNREPRESENTED
SRI. MUNIREDDDY FOR R-3)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD.26.10.2015 PASSED BY THE R-1 ON I.A.NO.1642/2015 IN
O.A.NO.182/2009, AS PER ANNEX-L AND ETC.,DDD
THIS PETITION COMING ON FOR PRELIMINARY HEARING - B
GROUP 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 in the nature of certiorari or any other writ to quash the order dated 26.10.2015 passed by the 1st respondent Debts Recovery Tribunal, Karnataka, Bangalore, on I.A.No.1642/2015 in O.A.No.182/2009, as per Annexure-L.
b) Consequently, reject I.A.No.1642/2015 in O.A.No.182/2009 on the file of 1st respondent Debts Recovery Tribunal, Karnataka, Bangalore, as per Annexure-F. 3
c) Pass any appropriate writ, order or direction as this Hon'ble Court deem it fit and proper in the facts and circumstances of the case and allow this writ petition with cost, in the ends of justice and equity.
2. Respondent-ICICI Bank Limited stated to have lent loan to the third and fourth respondents and petitioner is stated to have stood as a guarantor. On account of non-payment of the loan amount, respondent-ICICI Bank initiated proceedings before Debts Recovery Tribunal and it was numbered as O.A.No.182/2009. During the pendency of O.A.No.182/2009, respondent-ICICI Bank realized that petitioner was necessary and proper party as he stood as a guarantor to the third and fourth respondents. Thus, an application was filed before the Debts Recovery Tribunal to implead the petitioner as a proposed defendant No.3. Petitioner submitted his objection in which he has taken the contention relating to limitation and there was incomplete contract as is evident from documents. The Debts Recovery Tribunal has failed to take note of petitioner's contention relating to limitation as well as incomplete contract and petitioner is not a necessary and proper party in respect of proceedings pending in O.A.No.182/2009. It was also contended that in the impugned order the petitioner's contention raised in 4 his objection has not been dealt with. Thus, there is non- application of mind.
3. Heard the learned counsel for the parties.
4. Prima facie writ petition is not maintainable against impugned order dated 26.10.2015 passed on I.A.No.1642/2015 in O.A.No.182/2009 for the reasons that petitioner has a statutory remedy under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993 (for short, Act, 1993). Undisputedly, petitioner has a statutory remedy of appeal in terms of aforesaid provision. The petitioner without exhausting the said statutory remedy he has rushed to this Court. In fact, in paragraph 14 of the writ petition, petitioner has stated as under which is contrary to Section 20 of the Act, 1993.
"14. Having no other alternative and efficacious remedy available, the petitioner is approaching this Hon'ble Court, invoking its extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India and state the following, amongst other, grounds"
5. In view of the following three decisions, petitioner has a statutory remedy under Section 20 of the Act, 1993:- 5
i) Canara Bank Vs. P.Selathal and Others reported in 2020 SCC Online SC 245 in paragraph 32 has held as under:-
"32. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11 of the CPC. As observed hereinabove, the main prayer in the suits is challenging the decree passed by the DRT. The decree passed by the learned DRT and even the order passed by the Recovery Officer are appealable under Section 20 of the RDDBFI Act. In the case of O.C. Krishnan (supra), this Court has observed and held that in view of the alternate remedy of preferring the appeal before the DRAT, the petition under Article 227 challenging the order passed by the DRT shall not be maintainable, without exhaustion of such remedy. In the case of O.C. Krishnan (supra), decree passed by the DRT was challenged in a petition under Article 227 of the Constitution of India. The High Court allowed the petition. While allowing the appeal of the bank - Punjab National Bank, this Court has observed that without exhaustion of the remedies under the RDDBFI Act, the High Court ought not to have exercised its jurisdiction under Article 227. While holding so, in paragraph 6, this Court has observed and held as under:
"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, 6 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."
ii) G.Siva Prasada Reddy and Company and Another Vs. Presiding Officer, Debts Recovery Tribunal of A.P. and Karnataka, Bangalore and Others reported in 1998 (3) A.P.L.J. 446 (HC) in paragraph 9 has held as under:-
"9. As against the decrees passed by the first respondent- Debts Recovery Tribunal, Bangalore, the "Recovery of Debts due to Banks and Financial Institutions Act, 1993" envisages filing of appeals before the Debts Recovery Appellate Authority at Mumbai. Strangely, when there is a statutory appellate forum constituted for deciding the appeals arising out of the decrees and judgments passed by the Debts Recovery Tribunal-first respondent, petitioners without taking recourse to filing an appeal against the decree and judgment passed in O.A. No. 1033 of 1995 have approached this Court under Article 226 of the Constitution of India. The explanation offered by the petitioners for not approaching the Statutory Appellate Forum at Mumbai is all the more baffling."
iii) 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 7 elaborately discussed and held that party must avail statutory remedy and writ petition is not the remedy.
6. Thus, petitioner has not made out case so as to entertain the present petition on the sole ground that petitioner has a statutory remedy of appeal. Accordingly, writ petition stands dismissed reserving liberty to the petitioner to avail statutory remedy before appropriate forum. If such an appeal or application is filed before the appropriate forum, such forum is directed to take note of the time spent by the petitioner in the present petition for the purpose of condonation of delay in filing appeal or application.
Sd/-
JUDGE KPS