Amit Suresh Bhatnagar vs Union Of India on 9 January, 2020

[Cites 23, Cited by 0]

Gujarat High Court

Amit Suresh Bhatnagar vs Union Of India on 9 January, 2020

Bench: R.M.Chhaya

       C/SCA/23183/2019                                                ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.                 23183 of 2019

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                          AMIT SURESH BHATNAGAR
                                   Versus
                              UNION OF INDIA
==========================================================
Appearance:
MR AKSHAT KHARE(5912) for the Petitioner(s) No. 1,2,3,4,5
 for the Respondent(s) No. 1,2,3,4,5,6,7,8
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 CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI

                                Date : 09/01/2020

                          ORAL ORDER

(PER : HONOURABLE MR.JUSTICE R.M.CHHAYA)

1. Heard Mr. Akshat Khare, learned advocate for the petitioners.

2. By way of this petition under Article 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs "(A) Your Lordships may be pleased to allow this writ petition;

(B) Your Lordships may be pleased to quash and set aside the order dated 24.10.2018 passed by the Ld. Presiding Officer, Debt Recovery TribunalII, Ahmedabad in Original Application Nos. 894 of 2018, 845 of 2018, 895 of 2018 and 837 of 2018;

(C) Your Lordships may be pleased to stay the operation, implementation and execution of all orders dated 24.10.2018 passed by Page 1 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER the Ld. Presiding Officer, i/c DRTII in Original Application Nos. 894 of 2018, 845 of 2018, 895 of 2018 and 837 of 2018;"

3. From the prayers, it is evident that by this one petition, the petitioners have challenged orders passed in four Original Applications by Debt Recovery TribunalII, Ahmedabad being Order dated 24.10.2019, though in the prayer clause the date is wrongly mentioned as 24.10.2018..

4. Mr. Khare, learned advocate appearing for the petitioners submitted that petitioners no.1, 2 and 3 were arrested on 17.04.2018 and were enlarged on bail after about 15 months and have also relied upon the orders of bail granted by this Court. Mr. Khare also contended that the petitioners approached the DRT, Ahmedabad by filing application being Application No.2339 of 2019 in Original Application No. 894 of 2018 and inter alia prayed for setting aside the ex parte proceedings against the present petitioners. It was pointed out that another Interlocutory Application No. 2340 in Original Application No. 894 of 2018 with a prayer to consolidate all the original applications filed by consortium members Bank with Original Application No. 894 of 2018. Mr. Khare further pointed out that by order dated 28.08.2019, the application filed by the petitioners came to be dismissed with cost of Rs. 2 lakhs. Mr. Khare further pointed out that the said order was challenged by the Page 2 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER petitioners by way of filing an appeal before the DRAT, Mumbai and also asked for early hearing, which was granted. However meanwhile, the impugned orders are passed. Mr. Khare also contended that the petitioners have revoked the guarantees which were given. Mr. Khare also further pointed out that the properties of the petitioners have been seized by Enforcement Department and therefore, interest of the respondents is taken care of. Mr. Khare further pointed out that by the impugned order, the Tribunal has taken away right of the petitioners to place evidence on record and the right to defend is also taken away. Mr. Khare also relied upon the judgment of the Apex Court in the case of Authorised Officer, State Bank of Travancore and Ors. Vs. Mathew K.C. reported in (2018) 3 SCC 85 and contended that the present case is an exception which is carved out by the Apex Court in the said case and therefore, the present petition under Article 226 should be entertained. Mr. Khare invited attention of this Court to the observations made by the Apex Court in paras 6 and 7 of the judgment in the case of Authorised Officer, State Bank of Travancore (supra) and further contended that the principles of judicial procedure is not maintained by the Tribunal and therefore, the present petition is maintainable. It was also contended by Mr. Khare that though the appeal is provided under section 19 of the Recovery of Page 3 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER Debts and Bankruptcy Act, 1993, the petitioner would be unduly subjected to provisions of Rule 9 of Debts Recovery Appellate Tribunal (procedure) Rules, 1994 and shall have to deposit huge amount. On the aforesaid ground, it was contended that the petition be entertained.

5. Mr. Khare also relied upon the judgment of the Division Bench of this Court in the case of India Denim Ltd. vs. Bank of Baroda dated 09.10.2019 and contended that the petition under Article 227 of the Constitution of India was entertained by this Court and therefore, this petition also be entertained by this Court.

6. Mr. Khare has also taken this Court through the list of dates including factum of filing of different Original Applications before the DRT, Ahmedabad, the bail orders granted by this Court in favour of the petitioners no.1 to 3 and other factual matrix till the filing of the present petition.

7. No other or further submissions have been made.

8. Before reverting to the submissions made by the learned/ advocate appearing for the parties, the following noteworthy facts emerge from the record of the petition 8.1 That Original Application No. 894 of 2018 Page 4 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER came to be filed by Bank of India against the present petitioners and the Company named Diamond Power Infrastructure Ltd. wherein the Bank of India had granted aggregate credit facilities of Rs.661.88 crores to the Company named Diamond Power Infrastructure Ltd. wherein the petitioner nos. 1, 2 and 3 were Directors and the petitioners had stood guarantors for the same. Similarly, O.A. No. 895/18 was filed by Bank of Baroda on 08.06.2018, O.A. No. 845/18 was filed by the State Bank of India on 15.06.2018 and O.A. No. 837/18 was filed by Allahabad Bank on 11.06.2018. The DRT while passing the order dated 24.10.2019,(wrongly mentioned as order dated 24.10.2018 in the petition), has ordered thus In OA No.894/18 "It is, therefore ordered :

(i) That the Original Application No. 894 of 2018 initiated by the Applicant Bank for issuance of Recovery Certificate to the tune of Rs.

758,08,08,679.13 (Rupees Seven Hundred Fifty Eight Crore Eight Lac Eight Thousand Six Hundred Seventy Nine and Paise Thirteen only) together with further interest thereon @ 10.25 % (0.80% Base Rate - floating) p.a. and LIBOR + 500 bps on the outstanding under ECB Loan account with monthly rests from the date of filing of the application and additional (Penal) interest @ 2% simple on the above Page 5 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER amounts hereby succeeds and is allowed against the defendants No.1 to 6. The defendants no.1 to 6 are directed to pay the dues within a period of two months from the date of judgment, failing which the Applicant Banks will be entitled to sell the personal movables and immovables properties of the defendants no. 1 to 6 subject to paripassu charge on pro rata basis on the to pendentelite and future interest on the amount due @ 10.25% per annum with monthly rests from date of filing of Original Application till the full recovery is made from the defendants no.1 to 6 alongwith 2% simple penal interest.

(ii) The applicant will be free to act in view of observation made above for realization of their dues subject to lien/paripassu charge to the extent of their dues on hypothecated assets and mortgaged properties on pro rata basis.

(iii) Let a Recovery Certificate be issued against Defendants No.1 to 6 with memo of cost immediately u/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 together with the details of the properties (as detailed in O.A.) by fixing matter on 23/12/2019 before learned R.O., DRT2, Ahmedabad.

(iv) The defendants No.1 to 6 are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing with their properties/assets without first paying the claim of the Applicant Bank.

(v) No Recovery Certificate can be issued against defendants no.7 to 25. The Original Application is disposed of against them in view of findings as Page 6 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER given in the body of judgment.

The applicant Bank may file appropriate application before authorities functioning under IBC Code about recourse to be adopted for assets of Defendant No.1 in accordance with law."

In OA No.895/18 "It is, therefore ordered :

(i) That the Original Application No. 845 of 2018 initiated by the Applicant Bank for issuance of Recovery Certificate to the tune of Rs.468,74,22,867.45 (Rupees Four Hundred Sixty Eight Crore Seventy Four Lacs Twenty Two Thousand Eight Hundred Sixty Seven and Paise Forty Five only) together with further interest thereon @ 11.90% per annum with monthly rests from the date of filing of the application and additional (Penal) interest @ 2% simple on the above amounts hereby succeeds and is allowed against the defendants No.1 to 6. The defendants no.1 to 6 are directed to pay the dues within a period of two months from the date of judgment, failing which the Applicant Banks will be entitled to sell the personal movables and immovables properties of the defendants no. 1 to 6 subject to paripassu charge on pro rata basis on the to pendentelite and future interest on the amount due @ 11.90% per annum with monthly rests from date of filing of Original Application till the full recovery is made from the defendants no.1 to 6 alongwith 2% simple penal interest.

(ii) The applicant will be free to act in view of observation made above for realization of their dues subject to Page 7 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER lien/paripassu charge to the extent of their dues on hypothecated assets and mortgaged properties on pro rata basis.

(v) No Recovery Certificate can be issued against defendants no.7 to 25. The Original Application is disposed of against them in view of findings as given in the body of judgment.

The applicant Bank may file appropriate application before authorities functioning under IBC Code about recourse to be adopted for assets of Defendant No.1 in accordance with law."

In OA No.837/18 "It is, therefore ordered :

(i) That the Original Application No. 837 of 2018 initiated by the Applicant Bank for issuance of Recovery Certificate to the tune of Rs.

192,78,99,138 (Rupees One Hundred Ninety Two Crore Seventy Eight Lacs Ninety Nine Thousand One Hundred Thirty Eight only) together with further interests thereon @ 14.25% per annum Page 8 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER with monthly rests from the date of filing of the application and additional (Penal) interest @ 2% simple on the above amounts hereby succeeds and is allowed against the defendants No.1 to 6. The defendants no.1 to 6 are directed to pay the dues within a period of two months from the date of judgment, failing which the Applicant Banks will be entitled to sell the personal movables and immovables properties of the defendants no. 1 to 6 subject to paripassu charge on pro rata basis on the to pendentelite and future interest on the amount due @ 14.25% per annum with monthly rests from date of filing of Original Application till the full recovery is made from the defendants no.1 to 6 alongwith 2% simple penal interest.

(iv) The defendants No.1 to 6 are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing with their Page 9 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER properties/assets without first paying the claim of the Applicant Bank.

(v) No Recovery Certificate can be issued against defendants no.7 to 25. The Original Application is disposed of against them in view of findings as given in the body of judgment.

The applicant Bank may file appropriate application before authorities functioning under IBC Code about recourse to be adopted for assets of Defendant No.1 in accordance with law."

In OA No.845/18 "It is, therefore ordered :

(vi) That the Original Application No. 845 of 2018 initiated by the Applicant Bank for issuance of Recovery Certificate to the tune of Rs.

274,62,37,066.50 (Rupees Two Hundred Seventy Four Crore Sixty Two lacs Thirty Seven Thousand Sixty Six and paise fifty only)(as per Statement of Accounts at Ex. AW/1/19 to Ex.

A/W/1/21) together with further interest thereon @ 14.25% per annum with monthly rests from the date of filing of the application and additional (Penal) interest @ 2% simple on the above amounts hereby succeeds and is allowed against the defendants No.1 to 6. The defendants no.1 to 6 are directed to pay the dues within a period of two months from the date of judgment, failing which the Applicant Banks will be entitled to sell the personal movables and immovables properties of the defendants no. 1 to 6 subject to paripassu charge on pro rata basis on the to pendentelite and future interest on the amount due @ Page 10 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER 14.25% per annum with monthly rests from date of filing of Original Application till the full recovery is made from the defendants no.1 to 6 alongwith 2% simple penal interest.

(vii) The applicant will be free to act in view of observation made above for realization of their dues subject to lien/paripassu charge to the extent of their dues on hypothecated assets and mortgaged properties on pro rata basis.

(viii) Let a Recovery Certificate be issued against Defendants No.1 to 6 with memo of cost immediately u/s 19(22) of the Recovery of Debts and Bankruptcy Act, 1993 together with the details of the properties (as detailed in O.A.) by fixing matter on 23/12/2019 before learned R.O., DRTII, Ahmedabad. Ld. Recovery Officer may entertain this case after the cost of Rs. 1 lac is deposited in National Defence Fund.

(ix) The defendants No.1 to 6 are hereby restrained by means of injunction from depleting, transferring, encumbering, alienating or in any way dealing with their properties/assets without first paying the claim of the Applicant Bank.

(x) No Recovery Certificate can be issued against defendants no.7 to 25. The Original Application is disposed of against them in view of findings as given in the body of judgment.

The applicant Bank may file appropriate application before authorities functioning under IBC Code about recourse to be adopted for assets of Defendant No.1 in accordance with law."

Page 11 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER

8.2 Section 20 of the Act reads as follows "20. Appeal to the Appellate Tribunal. (1) Save as provided in subsection (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.

(2) No appeal shall lie to the Appellate Tribunal from an order made by a Tribunal with the consent of the parties.

(3) Every appeal under subsection (1) shall be filed within a period of forty five days from the date on which a copy of the order made, or deemed to have been made, by the Tribunal is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of [thirty days] if it is satisfied that there was sufficient cause for not filing it within that period.

(4) On receipt of an appeal under sub section (1), [or under subsection (1) of section 181 of the Insolvency and Bankruptcy Code, 2016] the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Tribunal.

(6) The appeal filed before the Appellate Page 12 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER Tribunal under subsection (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal."

8.2 The impugned orders are passed admittedly under section 19 of the Act and therefore, the petitioners have the alternative efficacious remedy by way of filing appeal under section 20 of the Act read with the relevant Rules and therefore, the present petition is not maintainable. Only because the petitioners would be required to comply with the condition of Rule 9 of the Debts Recovery Appellate Tribunal (procedure) Rules, 1994, the same cannot be called as undue requirement to be fulfilled by the petitioners. Even in facts of this case wherein huge amount of different banks are due and payable, this Court should not entertain a petition under Article 226 of the Constitution of India. Even on the grounds of equity, the petition does not require to be entertained at this stage under Articles 226 and/or 227 of the Constitution of India.

9. Though this Court has not entered into the merits of the case, it would be appropriate to note at this stage that following amount is involved in different original applications Page 13 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER which are subject mater of this petition which are enumerated as under OA No. 894/18 (filed by Bank of India) - Rs.758,08,08,679.13 along with interest as provided in the impugned order.

OA No. 895/18 (filed by Bank of Baroda) - Rs. 468,74,22,867.45 with interest as provided in the impugned order.

OA No. 837/18 (filed by Allahabad Bank) - Rs.192,78,99,138/ with interest as provided in the impugned order.

OA No. 845/18 (filed by State Bank of India) Rs.274,62,37,066.50 with interest as provided in the impugned order.

The aforesaid facts clearly reveal that huge amount is due and payable by the petitioners and filing of this petition is nothing but one more attempt on the part of the petitioners to delay the recovery proceedings.

10.The Hon'ble Apex Court in the case of Authorised Officer, State Bank of Travancore (supra) has observed thus "2. The present appeal assails an interim order dated 24.04.2015 passed in a writ petition under Article 226 of the Constitution, staying further proceedings at the stage of Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as the 'SARFAESI Act'), on deposit of Rs.3,50,000/within two weeks. An appeal against the same has also been dismissed by Page 14 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER the Division Bench observing that counter affidavit having been filed, it would be open for the Appellant Bank to seek clarification/modification/variation of the interim order.

6. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loathe to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:

"15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective Page 15 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."

7. The pleadings in the writ petition are very bald and contain no statement that the grievances fell within any of the well defined exceptions. The allegation for violation of principles of natural justice is rhetorical, without any details and the prejudice caused thereby. It harps only on a desire for regularisation of the loan account, even while the Respondent acknowledges its own inability to service the loan account for reasons attributable to it alone. The writ petition was filed in undue haste in March 2015 immediately after disposal of objections under Section 13(3A). The legislative scheme, in order to expedite the recovery proceedings, does not envisage grievance redressal procedure at this stage, by virtue of the explanation added to Section 17 of the Act, by Amendment Act 30 of 2004, as follows : "Explanation. For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including the borrower) to make an application to the Debts Recovery Tribunal under this sub section."

10. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab Page 16 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569, that : "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 fasttrack procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 9 226 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."

11. In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding : "43. Unfortunately, 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 Page 17 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER 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 a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the 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. ***

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."

12. In Union Bank of India and another vs. Panchanan Subudhi, 2010 (15) SCC 552, further proceedings under Section 13(4) were stayed in the writ jurisdiction subject to deposit of Rs.10,00,000/ leading this Court to observe as follows :

"7. In our view, the approach adopted by the High Court was clearly erroneous. When the respondent failed to abide by the terms of onetime settlement, there was no Page 18 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER justification for the High Court to entertain the writ petition and that too by ignoring the fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act."

13. The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782 observing:

"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)"

16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of exparte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and Page 19 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order: "46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing : "32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say Page 20 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."

11.As noted hereinabove, all the four Original Applications were filed in the month of June 2018 before the DRT and the petitioners no.1 and 2 were enlarged on bail on 18.06.2019 and the petitioner no.3 was enlarged on bail on 15.06.2018. Though the learned counsel appearing for the petitioners has relied upon the judgment of the Apex Court in the case of Authorised Officer, State Bank of Travancore (supra), the same does not take the case of the petitioners any further. On the contrary, following the ratio laid down by the Apex Court in the case of Authorised Officer, State Bank of Travancore (supra), the petitioners have an alternative efficacious remedy by filing appeal before the DRAT and in facts of the case, when a huge amount is due and payable from the petitioners, this Court should be loathe in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. This Page 21 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER Court also finds that the Tribunal has committed no error in passing the impugned orders and hence, no interference is called for even under Article 227 of the Constitution of India.

12.The judgment of the Division Bench of this Court in the case of India Denim Ltd. (supra) would not be applicable to the facts of this case. The said judgment and order was passed on consent of the respondents therein. As recorded by the Division Bench in the said judgment, in para 6, it was observed thus "6. The learned counsel appearing for the respondents would submit that there should not be any difficulty in giving an opportunity of hearing to the petitioners."

13.This Court finds that there is no breach of principles of judicial procedure. This Court finds that the Tribunal has not taken away any right to defend but the conduct of the petitioners is such on the contrary that the petitioners have made all attempts to delay the proceedings before the DRT.

14.Considering the ratio laid down by the Apex Court in the case of Authorised Officer, State Bank of Travancore (supra), the petition deserves to be dismissed only on the ground of availability of alternative efficacious remedy by filing of appeal as provided under section 20 of the Act. From the record of this petition Page 22 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020 C/SCA/23183/2019 ORDER and even the order impugned, this Court finds that there is no defiance of principles of judicial procedure. The record shows that the petitioners were represented by the advocate before the Tribunal. As per the list of dates submitted by the learned advocate for the petitioners, the account was declared to be NPA from January 2015 onwards and since then, huge amount of consortium of Bank is due and payable. From the facts also this Court finds that no exception is made out by the petitioners for exercise of inherent power of this court under Article 226 and its power under Article 227 of the Constitution of India and the petition is not entertained on the ground of availability of efficacious statutory remedy without going into the merits of the case.

15. The petition is therefore liable to be dismissed and is hereby dismissed with cost of Rs. 25,000/. the same shall be deposited by the petitioners with the Gujarat High Court Legal Services Committee.

(R.M.CHHAYA, J) (VIRESHKUMAR B. MAYANI, J) BIJOY B. PILLAI Page 23 of 23 Downloaded on : Sun Feb 16 08:49:10 IST 2020

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