Karnataka High Court
Sri L G Ramakrishnaiah vs M/S Idbi Bank Limited on 11 December, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.31407/2016(GM-DRT)
BETWEEN:
SRI. L.G. RAMAKRISHNAIAH
AGED ABOUT 64 YEARS,
SON OF GUDADAIAH,
R/AT. NO 83, PAPA REDDY
PALYA, JAYALAKSHMAMMA
LAYOUT, BANGALORE - 560 072. ... PETITIONER
(BY SRI. VENKATESH R BHAGAT, ADVOCATE)
AND:
1. M/S IDBI BANK LIMITED
INDIRANAGAR BRANCH,
NO.326, ASHWINI COMPLEX,
I & II FLOOR, 6TH MAIN,
80 FEET ROAD, INDIRANAGAR,
BANGALORE - 560 038.
REP BY BRANCH MANAGER.
2. PRASANNA KUMAR KALLE
(SINCE DEAD), REP.BY LEGAL HEIR,
2(a) KRISHNANDA RAO KALLE,
AGE 43 YEARS, NO.402,
F BLOCK, RAHEJA PARK,
MAGADI ROAD, AGRAHARA
DASARAHALLI, BANGALORE - 560 079.
ALSO AT FLAT NO.310,
RAM LAXAMAN APARTMENTS,
37TH CROSS, SRI ANANTHA NAGAR,
2
HUSKUR GATE ELECTRONIC
CITY, BANGALORE - 560 010.
3. MRS. ROOPA K RAO
40 YEARS, FLAT NO.310,
RAM LAXAMAN APARTMENTS,
37TH CROSS, SRI ANANTHA
NAGAR, HUSKUR GATE
ELECTRONIC CITY,
BANGALORE - 560 010.
4. ASTHA CONSTRUCTION
REP. BY ITS PARTNER,
M/S. ASTHA REDDY,
W/O. VIJAY.N, 388,
10TH MAIN, 4TH BLOCK,
BASAVESHWARNAGAR,
BANGALORE - 560 079.
ALSO AT M/S. ASTHA
INFRASTRUCTURE LTD.,
NO.154, (OLD NO.63),
2ND FLOOR, RAJAJINAGAR,
BANGALORE - 560 010. ... RESPONDENTS
(BY SRI. R.V NAIK FOR R1
SRI. REUBEN JACOB FOR R-2 (A) & R-3
SRI. T.P. MUTHANNA FOR R-1 (NOC)
V/O DTD. 21/3/2018, SERVICE OF NOTICE
TO R-4 IS COMPLETE.)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN RESPECT OF O.A. 260/2013 ON THE FILE OF
THE DEBTS RECOVERY TRIBUNAL, BENGALORE AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING -
B GROUP PHYSICAL HEARING / VIDEO CONFERENCING HEARING
(OPTIONAL), THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In the instant petition, petitioner has prayed for the following reliefs:-
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a) Call for the records in respect of O.A.No.260/2013 on the file of the Debts Recovery Tribunal, Bangalore.
b) Issue writ of certiorari or any other appropriate writ quashing the order dated 07.04.2016 in O.A.No.260/2013 passed by the Debts Recovery Tribunal, Bangalore, insofar as issuing Recovery Certificate vide Annexure-A pertaining to the property belonging to the petitioner and saddling personal liability on him towards repayment of debt;
c) Pass such other order as directions as this Hon'ble Court deems fit in the interest of justice and equity.
2. Petitioner has a statutory remedy of appeal before the Debts Recovery Appellate Tribunal against the impugned order dated 07.04.2016 passed in O.A.No.260/2013 by the Debts Recovery Tribunal, Bengaluru.
3. Learned counsel for the petitioner vehemently contended that the petitioner is neither borrower nor a guarantor. He has been impleaded as a unnecessary party and further, Debts Recovery Tribunal passed adverse order against the petitioner.
4. Ignoring the remedy of appeal under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993 (for short, Act, 4 1993) in paragraph 17(VI) in the writ petition it is pleaded as under:-
"VI. The petitioner has not filed any petition or appeal or any other proceedings and no petition or appeal or any other proceedings are pending before this Hon'ble Court or any other court or forum for the same cause of action and no other alternative remedy."
Petitioner is not entitled to maintain the present petition as he has not approached this Court with the clean hands on the ground in all fairness he should have stated that he has a remedy under Section 20 of the Act, 1993. On the other hand, in the aforesaid paragraph it is stated that he has no other alternative remedy on this score itself writ petition is liable to be rejected.
5. In view of the following three decisions, petitioner has a statutory remedy under Section 20 of the Act, 1993:-
i) Canara Bank Vs. P.Selathal and Others reported in 2020 SCC Online SC 245 in paragraph 32 has held as under:-
"32. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of the case on hand and the averments in the plaints, we are of the opinion that both the courts below have materially erred in not rejecting the plaints in exercise of powers under Order 7 Rule 11 of the CPC. As 5 observed hereinabove, the main prayer in the suits is challenging the decree passed by the DRT. The decree passed by the learned DRT and even the order passed by the Recovery Officer are appealable under Section 20 of the RDDBFI Act. In the case of O.C. Krishnan (supra), this Court has observed and held that in view of the alternate remedy of preferring the appeal before the DRAT, the petition under Article 227 challenging the order passed by the DRT shall not be maintainable, without exhaustion of such remedy. In the case of O.C. Krishnan (supra), decree passed by the DRT was challenged in a petition under Article 227 of the Constitution of India. The High Court allowed the petition. While allowing the appeal of the bank - Punjab National Bank, this Court has observed that without exhaustion of the remedies under the RDDBFI Act, the High Court ought not to have exercised its jurisdiction under Article 227. While holding so, in paragraph 6, this Court has observed and held as under:
"6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
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ii) G.Siva Prasada Reddy and Company and Another Vs. Presiding Officer, Debts Recovery Tribunal of A.P. and Karnataka, Bangalore and Others reported in 1998 (3) A.P.L.J. 446 (HC) in paragraph 9 has held as under:-
"9. As against the decrees passed by the first respondent- Debts Recovery Tribunal, Bangalore, the "Recovery of Debts due to Banks and Financial Institutions Act, 1993" envisages filing of appeals before the Debts Recovery Appellate Authority at Mumbai. Strangely, when there is a statutory appellate forum constituted for deciding the appeals arising out of the decrees and judgments passed by the Debts Recovery Tribunal-first respondent, petitioners without taking recourse to filing an appeal against the decree and judgment passed in O.A. No. 1033 of 1995 have approached this Court under Article 226 of the Constitution of India. The explanation offered by the petitioners for not approaching the Statutory Appellate Forum at Mumbai is all the more baffling."
iii) Assistant Commissioner (CT) LTU, Kakinada and ors. Vs. M/S Glaxo Smith Kline Consumer Health Care Ltd., in Civil Appeal No.2413/2020 (Arising out of SLP (C) No.12892/2019) reported in 2020 SCC Online SC 440 elaborately discussed and held that party must avail statutory remedy and writ petition is not the remedy.
6. It is held that writ Court should not entertain if a party has statutory remedy available to him. That apart, the remedies are Debts Recovery Tribunal proceedings, Debts 7 Recovery Appellate Tribunal and writ petition. Therefore, if a party is aggrieved by the Debts Recovery Appellate Tribunal, she or he is required to file a writ petition such writ petition would be entertained only by the Division Bench in terms of the notification issued by this Court.
In view of these facts and circumstances, the present petition is not maintainable. Accordingly, writ petition stands dismissed reserving liberty to the petitioner to avail alternative remedy. Time spent in the present petition shall be taken into consideration for the purpose of condonation of delay.
Sd/-
JUDGE KPS