Calcutta High Court (Appellete Side)
For The vs Satyawati Tondon And on 26 September, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
M.A.T. 1391 of 2011
26.9.11 (C.A.N. 8595 of 2011)
sk With
(C.A.N. 8594 of 2011 )
Mr. Sibnarayan Chattopadhyay
.... For the appellants.
Mr. Kunaljit Bhattacharyya,
Mr. Asit Kumar Banerjee
... For the respondents.
In re: - C.A.N. 8595 of 2011.
The application which has been filed for condonation of delay of 120 days on the averment that because of unavoidable circumstances, the petitioners/appellants could not file the appeal in time. But we are unable to find any reason which has been given in the application to show the presence of such "unavoidable circumstances". However, the learned Advocate appearing for the respondent submitted that the said application for condonation of delay can be allowed.
Hence, by consent of the parties Section 5 is allowed.
In re: - C.A.N. 8594 of 2011.
The facts of this case revealed that the appellants took a loan from the State Bank of India, Haldia Port Branch. The appellants have failed to make payment in accordance with the terms of agreement. Therefore, the 2 Bank duly issued a notice to the appellants and such notice was duly served under Section 13(2) read with Rule 9 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the appellants. Subsequently thereto, a demand notice was served upon the appellants on 25.8.2007 calling upon them to repay the amount mentioned in the notice.
It appears that Rs. 1, 19, 21,177/- was due on that point of time when a notice was issued by the Bank on 31st December, 2008. Thereafter, no attempt was made by the appellants to meet the said situation or to pay the dues of the State Bank of India. On the contrary, it appears that on 7th June, 2010 notice was duly served upon them informing that the possession of the properties will be taken at the risk and cost of the appellants/petitioners. It further appears that the possession of the properties have already been taken by the State Bank of India. We have also been informed by the Bank that notice was also issued and sale notice published on 14.8.2011 in Bengali Newspaper, Ananda Bazar Patrika. The appellants/ writ petitioners did not take any step in the matter to pay `off the dues of the Bank. On 14th August, 2011 the appellants/writ 3 petitioners filed a writ petition and the said writ petition was dismissed. The Hon'ble Single Judge also recorded in the order itself that the writ petitioners in particular one of the partners of the first writ petitioners, wrote a letter to the Bank stating that he was "prepared to offer a better amount by stretching" his "capacity to the maximum".
In this circumstance, the Hon'ble Single Judge has held that the writ petitioners' only remedy was before the Debts Recovery Tribunal under Section 17 of the Act. His Lordship duly considered the facts of the case and held that if the writ petitioners are aggrieved they have an alternative remedy to take steps before Tribunal.
In our opinion His Lordship has correctly come to the conclusion with reasons.
We have noticed that the Supreme Court has recently in a judgement reported in 2010 (8) SC page 110 in United Bank of India Vs. Satyawati Tondon and Ors. where the Supreme Court observed as follows:
Para 53. "In Raj Kumar Shivhare v. Directorate of Enforcement the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be 4 bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: (SCC p. 781, paras 31-32).
31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum.
54. In Modern Industries v. SAIL the Court held that where the remedy was available under the Interest on 5 Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution.
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." The Supreme Court has specifically stated that the High Court in this type of case should not pass any order even in the writ jurisdiction and we find that the Hon'ble Supreme Court was conscious enough to record that the jurisdiction of the writ court was not curtailed by the Supreme Court. But the writ court while passing an order in the writ jurisdiction must be conscious with regard to the enforcement of the Act in question. In view of that we find that the Hon'ble Single Judge was justified in dismissing the writ petition. 6
In view of that we do not find any reason to interfere with the Supreme Court's order and we dismiss this appeal.
Appeal and applications being CAN 8594 of 2011 are disposed of in the above terms.
However, this order will not stand in the way, the appellants is entitled to take any steps in the provision of the appropriate forum.
(Pinaki Chandra Ghose, J.) ( Soumen Sen, J.)