Gujarat High Court
M/S Anand Niketan Education Trust vs Hudco on 28 March, 2016
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/4694/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4694 of 2016
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M/S ANAND NIKETAN EDUCATION TRUST....Petitioner(s)
Versus
HUDCO, AHMEDABAD REGIONAL OFFICE....Respondent(s)
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Appearance:
MR DEEPAK VYAS, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 28/03/2016
ORAL ORDER
Heard learned advocate Mr. Deepak Vyas for the petitioner.
2. By filing the present writ petition, the petitioner has challenged E-auction notice, whereby the respondent-Housing and Urban Development Corporation Limited, in the process of taking steps under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to recover its dues from the petitioner, has advertised sale of the mortgaged property.
3. It appears that the petitioner obtained project finance from the respondent, its account was declared as Non Performing Account (NPA) leading to piling up of dues to the extent of Rs.94,82,350/-. Notice was issued under Section 13(2) of the Act which has culminated into the impugned notice under Section 13(4) of the Act. The symbolic possession of the property in question has been admittedly taken by the Page 1 of 4 HC-NIC Page 1 of 4 Created On Wed Mar 30 01:18:21 IST 2016 C/SCA/4694/2016 ORDER respondent.
4. There are more than one reasons as to why this Court is disinclined to entertain the present petition. The auction notice sought to be challenged by the petitioner was issued on 16.02.2016. The same was published in two newspapers. Immediately and simultaneously on 18.02.2016, the petitioner was intimated by the respondent-Housing and Urban Development Corporation Limited about the proposed auction; the petitioner was called upon and was required to clear the dues or come up with a buyer on its own so as to prevent auction of the mortgaged property. It appears that the petitioner did not respond and sat tight.
4.1 Under the auction notice, auction programme was notified. Actual auction has to take place on 29.03.2016. Last date for receiving the bids was 23.03.2016 upto 5.00 p.m. Evidently, therefore it is at the eleventh hour that the petitioner has approached this Court by filing the present petition. The petitioner remained in slumber for the intervening period.
5. In any case, stage obtained in the process of auction by the respondent under the SARFAESI Act is a post-13(4) stage. The petitioner therefore has an alternative statutory remedy of filing an appeal under Section 17 of the Act before the Debts Recovery Tribunal. It is trite that in the matters involving commercial dispute, rule of alternative remedy is Page 2 of 4 HC-NIC Page 2 of 4 Created On Wed Mar 30 01:18:21 IST 2016 C/SCA/4694/2016 ORDER adhered to and applied steadfast.
5.1 In United Bank of India vs. Satyawati Tondon and Others [(2010) 8 SCC 110], the Supreme Court approved the approach of the High Court in not entertaining the petition and relegating the petitioner to the remedy under Section 17 of the Act. The Apex Court categorically observed thus, "the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."
5.1.1 Sounding caution, the Supreme Court observed further thus, "...despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and 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. It is hoped and trusted that in future the High Courts will exercise their discretion in Page 3 of 4 HC-NIC Page 3 of 4 Created On Wed Mar 30 01:18:21 IST 2016 C/SCA/4694/2016 ORDER such matters with greater caution, care and circumspection."
5.2 It was sought to be submitted by learned advocate for the petitioner that the petitioner is academic institution. The Court is afraid that on that count alone the petitioner can claim to be a separate class by itself and a separate treatment otherwise than in accordance with law.
6. For all the aforesaid reasons, present petition is not entertained. The petitioner is at liberty to approach the Debts Recovery Tribunal in accordance with law.
7. The petition stands dismissed accordingly.
(N.V.ANJARIA, J.) chandrashekhar Page 4 of 4 HC-NIC Page 4 of 4 Created On Wed Mar 30 01:18:21 IST 2016