Andhra Pradesh High Court - Amravati
Ganga Ravi Kumar vs The Deputy General Manager, Andhra ... on 21 October, 2019
Author: J. Uma Devi
Bench: J. Uma Devi
THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
WRIT PETITION No.16496 of 2018
ORDER:( per the Hon'ble Sri Justice A.V.Sesha Sai) Heard Sri Kowturu Pavan Kumar, learned counsel for the petitioner, Smt.V.Dyumani, learned counsel for the first respondent, and Sri K.Ananda Rao, learned counsel for the second respondent, apart from perusing the entire material available on record.
2. In the present Writ Petition, challenge is to the order, dated 13.04.2018, passed by the Debts Recovery Tribunal, Visakhapatnam, (hereinafter referred to as 'Tribunal'), in S.A.No.93 of 2016.
3. According to the petitioner herein, he stood as guarantor to a loan transaction. First respondent-bank pressed into service the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (for brevity, 'the Act'), and issued a notice, under sub-Section (2) of Section 13 of the Act, on 07.07.2015, indicating Rs.63,36,619/- as due as on 30.06.2015. Subsequently, notice, under Section 13 (4) of the Act, was issued on 21.09.2015 followed by the order, dated 10.02.2016, under Section 14 of the Act. Subsequently, e-auction notification was issued on 22.02.2016, fixing the date of auction of the schedule property as 29.03.2016 and, AVSS,J & JUD,J W.P.No.16496 of 2018 2 as proposed, the auction was held on the said date. Second respondent herein emerged as the successful bidder in the said auction, out of three participants, for a sum of Rs.35,00,000/-. It is stated that, as per the provisions of the statute and the Rules, second respondent paid the entire amount fetched in the said auction. Thereafter, sale certificate was issued on 13.04.2016 and the sale was also registered on 09.05.2016.
4. Petitioner herein approached the Tribunal by way of filing S.A.No.93 of 2016. Initially, the said Securitization Appeal was allowed by the Tribunal on 12.05.2016. Assailing the validity of the said order, passed by the Tribunal, first respondent-bank and the auction purchaser filed W.P.Nos.16898 and 17408 of 2016 before this Court and the said Writ Petitions were allowed by this Court, by way of a common order, dated 31.08.2016, and the matter was remanded to the Tribunal. After the said remand, the Tribunal, by way of an order, dated 13.04.2018, dismissed the said Securitization Appeal No.93 of 2016. The present Writ Petition came to be filed against the said order passed by the Tribunal.
5. This Court, while ordering notice before admission, on 01.05.2018, granted interim injunction, restraining the second respondent herein from alienating or changing the nature of the property bearing D.No.8-35 admeasuring AVSS,J & JUD,J W.P.No.16496 of 2018 3 238.46 sq.yards situated at Ganapavaram village, Nadendla Mandal, Guntur District. An application to vacate the said injunction order, supported by a counter-affidavit, is filed by the second respondent-auction purchaser.
6. It is contended by the learned counsel for the petitioner that the order passed by the Tribunal is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Act. In elaboration, it is further contended by the learned counsel that the Tribunal ought to have seen that, in view of the collusion between the first respondent-bank and the auction purchaser, the auction did not fetch sufficient amount. It is also the submission of the learned counsel that one of the participants in the subject auction is the son of the Deputy Manager of the first respondent-bank.
7. On the contrary, it is submitted by the learned Standing Counsel for the first respondent-bank and the auction purchaser-second respondent herein that there is absolutely no illegality nor there exists any infirmity in the impugned order and, in the absence of the same, the impugned action is not amenable for any judicial review, under Article 226 of the Constitution of India. It is further submitted by the learned counsel that the present Writ Petition is not maintainable before this Court having regard to the provisions of Section 18 of the Act, which provides for statutory remedy of appeal AVSS,J & JUD,J W.P.No.16496 of 2018 4 against the order of the Tribunal before the Appellate Tribunal. It is further submitted by the learned counsel that, without availing such alternative remedy available under law, the present Writ Petition is filed before this Court. It is also the submission of the learned counsel that the said alleged son of the Deputy Manager of the first respondent-bank, though participated in the auction, did not emerge as highest bidder and the highest bidder is the second respondent herein.
8. In order to consider the aspect of availability of alternative remedy raised by the learned counsel for the first respondent and the auction purchaser-second respondent, it would be appropriate to refer to the provisions of Section 18 of the Act.
9. As per Section 18 of the Act, any person, aggrieved by any order made by the Tribunal, under Section 17 of the Act, may prefer appeal to the Appellate Tribunal within thirty days from the date of receipt of the order of the Debts Recovery Tribunal.
10. In the instant case, admittedly, auction was held as long back as on 29.03.2016, which was confirmed subsequently and the sale certificate was also issued on 13.04.2016 and the sale was also registered on 09.05.2016. The points raised by the learned counsel for the petitioner can be agitated AVSS,J & JUD,J W.P.No.16496 of 2018 5 before the appropriate forum of law and cannot be decided under Article 226 of the Constitution of India.
11. In this context, it would be appropriate to refer to the judgment of the Honourable apex Court in AUTHORISED OFFICER, STATE BANK OF TRAVANCORE v. MATHEW K.C.1, wherein the Honourable apex Court deprecated the entertainment of Writ Petitions, under Article 226 of the Constitution of India, having regard to the availability of alternative remedy.
12. Having regard to the principles laid down in the above referred judgment that exceptional and extraordinary points should be pointed out for invoking the jurisdiction of this Court, under Article 226 of the Constitution of India, and the case on hand lacks the same, as such, this Court is not inclined to grant any relief in the present Writ Petition under Article 226 of the Constitution of India.
13. For the aforesaid reasons, the Writ Petition is dismissed. However, it is open for the petitioner herein to avail the remedy available under the statute in accordance with law. Since the petitioner herein spent sufficient time before this Court, under Article 226 of the Constitution of India, this Court deems it appropriate to grant two weeks time to the petitioner herein, from the date of receipt of a copy of this 1 (2018) 3 SCC 85 AVSS,J & JUD,J W.P.No.16496 of 2018 6 order, to avail the said remedy. There shall be no order as to costs.
14. As a sequel thereto, miscellaneous petitions, pending, if any, shall stand closed.
__________________ A.V.SESHA SAI,J ________________ J. UMA DEVI, J 21st October, 2019.
Note:
Furnish C.C. of the order within one week. B/o Tsy