Allahabad High Court
Rajneesh Parashar vs Learned Debts Recovery Tribunal Thru. ... on 21 December, 2022
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 1 Court No. - 6 Case :- WRIT - C No. - 9359 of 2022 Petitioner :- Rajneesh Parashar Respondent :- Learned Debts Recovery Tribunal Thru. Its Presiding Officer Lko. And 2 Others Counsel for Petitioner :- Abhishek Khare,Aahuti Agarwal Counsel for Respondent :- Vinay Shankar Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner and Shri Vinay Shankar, learned counsel for the respondent no. 2 Bank.
2. The instant petition has been filed praying for the following main reliefs:
"(i) to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 28.03.2022 passed by the respondent no. 1 as contained in Annexure No. 1 to this writ petition.
(ii) to issue a writ, order or direction in the nature of mandamus to direct the respondent no. 1 to consider the application of the petitioner prior to passing of the judgement.
(iii) to issue a writ, order or direction in the nature of mandamus directing the respondent no. 3 to handover the possession of the allotted unit to the petitioner within stipulated period of time."
3. A preliminary objection has been taken by Shri Vinay Shanker, the respondent Bank that under challenge is the order dated 28.03.2022 passed by learned Debt Recovery Tribunal, Lucknow as such considering Section 20 of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as the Act, 1993) the petitioner has an alternative remedy of filing of appeal to the appellate Tribunal against the order impugned. He also contends that considering Section 22(1)(g) of the Act 1993 the petitioner can also file an application for setting aside the order of dismissal of the application for default or any of the order passed by the learned Tribunal ex-parte.
4. Placing reliance on the aforesaid provisions it is contended that once the petitioner has an alternate remedy as such the instant 2 petition filed under Article 226 of the Constitution of India is not maintainable.
5. Replying to the same the arguments of learned counsel for the petitioner are that in similar circumstances, the Delhi High Court in a judgement reported in 2022 SCC Online Del 316 in re: Ashish Tiwari vs Union Bank of India and others has entertained a petition placing reliance on a division bench judgement of the Delhi High Court passed in Writ Petition (C) No. 6774 of 2021 in re: Hridesh Kumar Pathak vs Bank of Maharashtra, a copy of which is annexure 24 of the petition, and as such the instant petition would be maintainable.
6. Having hearing learned counsel for the petitioner and Shri Vinay Shankar, learned counsel for the respondents on the preliminary objection what emerges is that the Delhi High Court in the case of Ashish Tiwari (Supra) was seized of a matter, as emerges from the facts indicated in paragraph 4 of the said judgement where the grievance was that the circulars issued by the Reserve Bank of India and the National Housing Bank which clearly mandated that the banks and other financial institutions should desist from offering loans in subvention of the schemes offered by the developers were not being followed. Thus, it is apparent that it was not the order of the learned Tribunal which was under challenge before the Delhi High Court.
7. So far as the order of the Division Bank of the Delhi High Court in the case of Hridesh Kumar Pathak (Supra) is concerned, it is only an interim order and from a perusal of the same it emerges that the proceedings before the learned tribunal were challenged on the ground that the process before the National Company Law Tribunal is pending.
8. In the instant case the petitioner has challenged the ex-parte judgement passed by the learned Tribunal for which remedy is available to the petitioner in terms of Section 22(1)(g) or Section 20 of the Act 1993 in as much as the petition has not been filed with a grievance that the Circulars issued by the Reserve Bank of 3 India and the National Housing Bank are not being followed or that the matter is pending before the National Company Law Tribunal against the petitioner.
9. Various pleas have been taken on the merit of the matter that keeping in view the Reserve Bank of India circular the amount should not have been released, the bank itself has filed an FIR against its own employees and they have filed an original application for recovery before the Debt Recovery Tribunal.
10. However all these pleas are on the merit of the matter and once the petitioner has an alternative and efficacious remedy of either filing of an appeal or filing of an application for recall as such this Court refuses to interfere in the matter.
11. Considering the aforesaid discussion the preliminary objection is upheld. The petition is dismissed.
Order Date :- 21.12.2022 J.K. Dinkar