Madhya Pradesh High Court
Dharmendra Pal vs State Bank Of India on 8 January, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
A T IND OR E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 28th OF FEBRUARY, 2024
WRIT PETITION No. 22113 of 2021
BETWEEN:-
DHARMENDRA PAL S/O SHRI HANSRAJ PAL F NO.
417, A-3, MILAN HEIGHT BICHOLI MARDANA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI NISHEET WISHARD, ADVOCATE )
AND
1. STATE BANK OF INDIA CHAIRMAN CENTRAL
OFFICE AT MADAM CAMA ROAD
(MAHARASHTRA)
2. REGIONAL MANAGER STATE BANK OF INDIA
RBO-1,5,,Y.N.ROAD (MADHYA PRADESH)
3. BRANCH MANAGER STATE BANK OF INDIA
SME BRANCH 31, CHANDRASHEKHAR VYAS
ROAD, POLOGROUND (INDUSTRIAL ESTATE)
(MADHYA PRADESH)
4. M/S LAKRAS BUILDERS THROUGH
PROPRIETOR VISHWAS LAKRAS 469/25,
NANDA NAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YASHWARDHAN TIWARI, ADVOCATE )
...................................................................................................
This petition coming on for orders this day, the court passed the
following:
ORDER
Signature Not Verified
Signed by: BAHAR CHAWLA
Signing time: 3/5/2024
6:48:13 PM
2
Heard finally, with the consent of the parties.
2] This petition has been filed by the petitioner under Article 226 of the Constitution of India seeking the following reliefs:-
"In view of the above facts and submissions, the humble petitioner most respectfully prays to this Hon'ble Court to issue a writ of mandamus to the respondents under:
(i) To allow the present writ petition;
(ii) To issue a Writ of Mandamus by directing the Respondent No. 1 to 3 to allow the request of revocation made by the Petitioner by way of Annexure P/4 and further consequently release the property of the Petitioner.
(iii) Any other order or direction, which this Hon'ble Court deems fit and proper, be passed in favour of the petitioner."
3] In brief, the facts of the case are that the petitioner stood as a guarantor for the respondent No.4 M/s Lakras Builders in a loan transaction wherein, the respondent No.1 State Bank of India initially extended a loan to the tune of Rs.2.50 Crores in the year 2011. As a guarantor, the petitioner had placed his three properties with the Bank as collateral security. Admittedly, the petitioner wanted to relieve himself from the aforesaid guarantee and thus, intimated the Bank regarding the same in the year 2017 and wrote letters to the respondent No.1 Bank with a request for revocation of guarantee vide letters dated 01.05.2017, 21.01.2018, 27.03.2018, 28.03.2019 and 28.09.2020, however, no response was given by the Bank to the aforesaid letter. Thus, the petitioner applied to the Bank to obtain the documents through RTI, which was denied and against such denial, the petitioner also preferred a second appeal before the Central Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 3 Information Commission and a favourable order was passed and the Bank was directed to handover the documents to the petitioner. After the documents were obtained by the petitioner, he came to know that when the loan was extended to the respondent No.4, the wife of respondent No.4, Dipti Lakras had kept six properties as collateral security. However, as per the information received in the year 2023, the Bank had already released four properties.
4] Shri Nisheet Wishard, learned counsel for the petitioner has submitted that initially there were total 11 properties that were kept as collateral securities and as per the letter obtained through RTI, it is mentioned that only seven properties have been kept as collateral security for the loan, out of which, three properties belong to the petitioner.
5] The grievance of the petitioner is that despite writing so many letters to the Bank, his properties were never released by the Bank with mala fide intention and instead, during these years, the properties of the wife of respondent No.4, who was the borrower, has been released, which has caused great prejudice to the petitioner, despite the fact that even as per the loan agreement which clearly provides that for revoking the guarantee, a notice has to be served to the Bank, which was to come into force only at the expiry of six clear calendar months after the service of notice on and express written acceptance of such revocation by the Bank.
6] Counsel has further submitted that the Bank did not care even to deny the request made by the petitioner, which also adds to the mala fide on the part of the respondent Bank. Thus, it is submitted that the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 4 petitioner has clearly made out a case of the Bank's mala fide and thus, the relief prayed, may be granted to the petitioner. 7] In support of his submissions, counsel for the petitioner has relied upon certain decisions of Supreme Court in the cases of M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum- Assessing Authority & Ors. passed in Civil Appeal No.5393 of 2010 dated 01.02.2023, para 4; ABL International Ltd. & Anr. Vs. Export Credit Guarantee Corporation and India Limited & Ors., passed in Appeal (Civil) 5409 of 1998 dated 18.12.2003 and in the case of Union of India and Ors. Vs. Tantia Construction Pvt. Ltd., passed in Special Leave Petition (C) No.18914 of 2010 dated 18.04.2011, para 27. 8] The prayer is opposed by Shri Yashwardhan Tiwari, learned counsel for the respondent, who has raised a preliminary objection regarding maintainability of the petition on the ground that the agreement between the parties was purely contractual in nature and thus, the petition under Article 226 of the Constitution is not maintainable especially when there are disputed questions of facts involved.
9] Counsel has also submitted that as per the agreement, the guarantors have already waived their rights conferred on them under Sections 131, 133, 134, 135, 139, 140 and 141 of the Indian Contract Act, 1872 and they cannot claim any preference for releasing the property. Counsel has also drawn the attention of this Court to Clause 12 and thus, it is submitted that it was the sole discretion of the Bank to release any bank guarantee of any of the guarantor. It is further Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 5 submitted that otherwise also, the borrower's wife's property kept as collateral has been released only to extend further facility of loan to the borrower and thus, it is submitted that no case for interference is made out and the petition is liable to be dismissed. 10] In support of his submissions, counsel for the respondent has relied upon the decision rendered by the Supreme Court in the case of M/s Radhakrishna Agarwal and Others Vs. State of Bihar and Others reported as (1977) 3 SCC 457, para 12; Sita Ram Gupta Vs. Punjab National Bank and Others reported as (2008) 5 SCC 711, paras 7, 8 and 9. Reliance is also placed on the decision rendered by the High Court of Delhi in the case of Innovative B2B Logistics Solutions Ltd. Vs. Union of India and Others, passed in W.P. (C) No.4814/2011 dated 20.07.2011, paras 9 and 10.
11] In rebuttal, counsel for the petitioner has again reiterated that the Bank has acted with mala fide intentions, which is also apparent from the fact that even the documents which the petitioner sought of his guarantee were not supplied to him by the Bank and it took him to file an appeal before the Central Information Commission and only after that appeal was allowed, the petitioner came to know about the Bank's mala fide. Thus, it is submitted that it is a fit case where the writ jurisdiction of this Court can be invoked and thus, the petition may be allowed.
12] Heard counsel for the parties and perused the record. 13] The Supreme Court in the case of M/s. Godrej Sara Lee Ltd.(Supra), which has been relied upon by the petitioner, has held as under:-
Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 6"4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". In a long line of decisions, this court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability"
and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 7 despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper."
(Emphasis Supplied) 14] On perusal of the petition it is found that the petitioner in para 3 of the petition, which refers to the details of remedies exhausted, has stated that there is no alternative efficacious remedy available to him for redressal of his grievance, however, this Court is of the considered opinion that under what circumstances the respondents have released the properties of the wife of the respondent No.4 is a disputed question of fact, and this question cannot be gone into by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. Thus, despite the action on the part of the respondent Bank while releasing the properties of the wife of the respondent No.4, which were also kept as collateral securities along with the three properties of the petitioner, appear to be arbitrary in nature, still, it is a disputed question of fact, and needs to assessed on the basis of proper evidence only and not on affidavits. In such circumstances, the decision rendered by the Supreme Court in the case of M/s. Godrej Sara Lee Ltd.(Supra) which provides that writ can still be maintained despite the alternate remedy, it cannot be said to be applicable to the facts and circumstances of the case.
15] In view of the aforesaid discussion, the discretion which is available to this Court under Article 226 of the Constitution of India cannot be exercised in favour of the petitioner and accordingly, the petition is hereby dismissed. However, with liberty reserved to the Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM 8 petitioner to take recourse of such legal remedy as is available to him under law, as the petitioner can also claim the compensation for the wrong done to him through the Civil Court of competent jurisdiction. 16] Needless to say, this Court has not reflected upon the merits of the case, and the time spent by the petitioner in prosecuting this petition shall be excluded from the period of limitation if the petitioner chooses to take recourse of the alternative remedies. 17] With the aforesaid directions, the petition stands dismissed and disposed of.
(SUBODH ABHYANKAR) JUDGE Bahar Signature Not Verified Signed by: BAHAR CHAWLA Signing time: 3/5/2024 6:48:13 PM