Kerala High Court
E.T.Thomas vs The Chief Manager on 24 February, 2010
Bench: P.R.Raman, C.N.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 311 of 2010()
1. E.T.THOMAS ,ELAMTHOTTAM HOUSE
... Petitioner
2. BIJU THOMAS, S/O.E.T.THOMAS
Vs
1. THE CHIEF MANAGER
... Respondent
2. HINDUSTAN PETROLEUM CORPORATION LTD
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent : No Appearance
The Hon'ble the Acting Chief Justice MR.P.R.RAMAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :24/02/2010
O R D E R
P.R.RAMAN, AG. C.J. &
C.N.RAMACHANDRAN NAIR, J.
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Writ Appeal No.311 of 2010
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Dated this the 24th day of February, 2010.
JUDGMENT
Raman, Ag. C.J.
Respondents 1 and 2 in the Writ Petition are the appellants. The Writ Petition was filed by the Chief Manager, State Bank of Travancore, for a direction to the Debt Recovery Tribunal to dispose of an appeal preferred by the appellants herein against proceedings initiated by the State Bank of Travancore under the Securitisation Act. Because of the delay, writ petitioner wanted early disposal of the same for which the Writ Petition was filed.
2. The learned Single Judge noticed that after availing a loan, the borrower as well as the guarantor who are the appellants, did not pay any heed to satisfy the due amount, under which circumstance, proceedings were initiated by the Bank for the realisation of their dues by invoking the provisions under the SARFAESI Act. It appears that in the meanwhile, security interest was also created by the appellants by entering into a lease agreement with another person namely, the W.A. 311/2010 2 fourth respondent-Hindustan Petroleum Corporation for running a petroleum outlet. Pursuant to the steps taken under the SARFAESI Act which was under challenge before this court in W.P.(C) No.29687/2008 at the instance of the Petroleum company, Ext.P2 judgment was rendered wherein it was made clear that the lease created after creating security interest over the property cannot have consequence at all and security interest superceded the other. The Bank was accordingly set at liberty to proceed with proceedings under the SARFAESI Act and the Writ Petition was dismissed. It is to be noticed that the proceedings initiated by the Bank under the SARFAESI Act was challenged by the first appellant before the Debt Recovery Tribunal by filing S.A. No.197/2008. The D.R.T. by an interim order granted stay of all further proceedings. Ext.P3 is the said order produced in the case. Written statement has already been filed by the Bank in the matter evidence by Ext.P4, two years back.
3. From the above facts it can be seen that the delay in disposal of the appeal by the appellants will only enure to their benefit because there is already an interim stay. But it prejudicially affects the Bank's interest. The very purpose of constitution of a separate Tribunal for W.A. 311/2010 3 Recovery of Debts due to Financial Institutions is for a speedy trial as public money is involved. Therefore, the Legislature has provided a time limit of four months for disposal of such matters filed before the D.R.T. as evidenced by Section 17(5) of the Securitisation Act. It was contended before the learned Single Judge that there is an alternate remedy available to the writ petitioner as provided under Section 17(6) itself for filing an appeal before the Appellate Tribunal in case of such inordinate delay in the matter of disposal by the D.R.T. But the learned Single Judge held that the alternate remedy available to the petitioner is not a bar for entertaining the Writ Petition. The learned Single Judge directed the D.R.T., Ernakulam to consider and dispose of Ext.P1 in accordance with law, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of the judgment. Hence this appeal.
4. The learned counsel appearing for the appellants submits that in view of the specific provision contained in Section 17(6) of the Act, the remedy available to the first respondent herein is only to move the Appellate Tribunal for such relief as claimed in the Writ Petition and, therefore, the Writ Petition ought not to have been entertained. It is W.A. 311/2010 4 also contended that the Tribunal is constituted in exercise of power under Article 323B of the Constitution of India and therefore, this court has no jurisdiction over the Tribunal.
5. We have heard learned counsel Sri.Adeep Anwar appearing on behalf of the appellants and also Adv. Sri.T.Sethumadhavan appearing on behalf of the first respondent-Bank. Both the contentions as noticed above raised by the appellants are totally misconceived. The constitutional power of the High Court under Article 226 of the Constitution of India can be exercised even if there is an effective alternate remedy and there is no bar as such. But the non-interference when effective alternate remedy is available is by way of self-imposed restriction. In this case the facts as pleaded and found by the learned Single Judge do justify interference by this court for the limited purpose of directing the Tribunal to dispose of the matter expeditiously. The other contention that this court has no power or jurisdiction over the Tribunal is also misconceived because the Debt Recovery Tribunal is amenable to the writ jurisdiction of this court under Article 226 and also to the supervisory jurisdiction under Article 227 of the Constitution of India. The appellate power under the W.A. 311/2010 5 Securitisation Act is conferred on the D.R.T. Therefore, D.R.T. is only exercising appellate power under the Securitisation Act. No separate Tribunal is constituted and it is only a conferment of additional power under the Securitisation Act on the D.R.T. Thus there is no merit in either of the contentions raised. The learned Single Judge having exercised the writ jurisdiction after being satisfied that the alternate remedy, if any, shall not be a bar for rendering justice to the parties, we do not think, in the circumstances, the said discretion exercised is to be interfered with in an intra court appeal. In the result, we find no merit in the appeal. The same is dismissed with a cost of Rs.10,000/- (Rupees ten thousand only).
P.R.RAMAN Acting Chief Justice C.N.RAMACHANDRAN NAIR Judge pms