Allahabad High Court
Deepak Kumar Tiwari vs State Of U.P. And 4 Others on 20 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 19374 of 2020 Petitioner :- Deepak Kumar Tiwari Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Santosh Kumar Srivastava Counsel for Respondent :- C.S.C.,Ramesh Kumar Shukla Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Instruction produced by the learned Standing Counsel is taken on record.
Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1 to 4 and Shri Ramesh Kumar Shukla, learned counsel representing the respondent no.5.
The instant petition has been filed seeking following relief:
"(a) Issue a writ, order or direction in the nature of MANDAMUS commanding the respondents to deliver actual physical possession of property "one story house consisting situated at Arazi No.124, Mauza-Sarai Lili (Alias Khojpur) Pargana Sikandra, Tehsil Phulpur, District Allahabad, area 114.33 Sq. Mtrs to the petitioner within the time fixed by this Hon'ble Court or return the money deposited by the petitioner with 15% interest from the date deposit till the actual payment is made;
(b) Issue a writ, order or direction in the nature of mandamus commanding the respondent-bank to release the rent of the petitioner of the rented house till the handed over the possession from the actual payment is made."
The submission of the learned counsel for the petitioner is that the petitioner is the auction purchaser of the property situated at Arazi No.124, Mauza-Sarai Lili (Alias Khojpur) Pargana Sikandra, Tehsil Phulpur, District Allahabad of which possession has not been handed over to him by the respondent no.5-bank. As such either the respondent no.5-bank may return the money or hand over the possession of the property in question for which the petitioner is auction purchaser.
Per contra, learned Standing Counsel, on the basis of instruction, contends that the property in question which has been purchased by the petitioner does not lie at Arazi No.124, Mauza-Sarai Lili (Alias Khojpur) Pargana Sikandra, Tehsil Phulpur, District Allahabad and as such, the petitioner has an alternative remedy to approach the Debts Recovery Tribunal under Section 17 of the Act.
We have considered the submissions made at the bar.
The Hon'ble Supreme Court in the case of ICICI Bank Ltd. v. Umakanta Mohapatra, Civil Appeal Nos. 10243-10250 of 2018, decided on 05.10.2018, has held as under:
"Delay condoned.
Leave granted.
Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in Authorized Officer, State Bank of Travancore and Another VS Mathew KC., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non-Performing Assets (NPAs).
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:-
18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. Vs Prem Heavy Engineering Works (P) Ltd and another, (1997) 6 SCC 450, observing:-
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."
The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
The appeals are allowed in the aforesaid terms.
Pending applications, if any, shall stand disposed of."
Recently the Hon'ble Apex Court in the case of C. Bright Vs. The District Collector & others, Civil Appeal No. 3441 of 2020 decided on 05.11.2020 has observed as follows:
"21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors., (2010) 8 SCC 110 held that in cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which will ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Hindon Forge Private Limited has held that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, how- ever, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when effective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money.
22. Thus, we do not find any error in the order passed by the High Court. Consequently, the appeal is dismissed."
In view of the availability of alternative remedy and since highly disputed questions of facts are involved, we are not inclined to entertain this writ petition.
Accordingly, the writ petition is dismissed on the ground of alternative remedy.
Order Date :- 20.1.2021 M. Tariq