Calcutta High Court (Appellete Side)
Sajal Kumar Mondal & Anr vs The State Of West Bengal & Ors on 1 July, 2010
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr Justice Jayanta Kumar Biswas
W.P. No. 13911 (W) of 2010
Sajal Kumar Mondal & Anr.
v.
The State of West Bengal & Ors.
Mr Binay K. Panda, advocate, for the petitioners. Mr Fazlul Haque and Mr
Supriyo Roy Chowdhury, advocate, for the state.
Heard on : July 01, 2010.
Judgment on : July 01, 2010.
The Court:- The petitioners in this art.226 petition dated June 29, 2010
are seeking the following principal relief:
"(a) A writ of or in the nature of Mandamus commanding the respondents,
their agents, servants, subordinates, employees and /or assignees to handover the possession of the Secured Asset to the petitioners by discharging from the loan amount which was fully repaid and withdraw the notice dated 22.05.2010 as well as tender advertisement dated 03.05.2010 for selling out the said property forthwith."
The notice dated May 22, 2010 (at p.17) was issued by the secured creditor under s.13(4) of the SARFAESI ACT, 2002. From the possession certification dated May 22, 2010 (at p.18) it is evident that for non-payment of the loan amount mentioned therein the secured creditor took possession of the property.
According to the petitioners the documents produced with the petition will show that they paid more than what was due and payable. There is no document dated May 3, 2010 produced with the petition. What has been produced is a notice dated May 30, 2010 (at p.22) issued by the secured creditor under s.13 notifying the date for auction sale of the property in question.
Counsel submits that since alternative remedy is not a bar to filing a petition under art.226 before the high court and the case of the petitioners is that they paid the secured creditor more than what was due and payable, this court should exercise power for interfering with the notices.
In my opinion, the petition should not be entertained. The principle that alternative remedy is not a bar to approaching the high court under art.226 has no manner of application to the case.
2Against the s. 13(4) notice and the auction notice statutory remedy, if any, of the petitioners was under the s.17 of the SARFAESI ACT, 2002. The question whether the petitioners have paid the secured creditor more than what was due and payable was to be examined by the Debts Recovery Tribunal, if a s.17 appeal was filed by the petitioners.
In the name of alternative remedy is not a bar to maintaining a writ petition the petitioners cannot be permitted to bye pass the statutory remedy. The proceedings under the Act initiated by the secured creditor cannot be permitted to be derailed.
For these reasons, the petition is dismissed. No costs. Certified xerox.
(Jayanta Kumar Biswas, J)