Madras High Court
M/S.Kotak Mahindra Bank Ltd vs A.Anand Prasad on 28 September, 2018
Author: M. Duraiswamy
Bench: V.K.Tahilramani, M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.09.2018 CORAM : THE HON'BLE MRS.V.K.TAHILRAMANI, CHIEF JUSTICE AND The HON'BLE MR.JUSTICE M.DURAISWAMY C.R.P(PD).No.1795 of 2018 and C.M.P.No.10069 of 2018 and W.P.No.6667 of 2018 and W.M.P.Nos.12037, 12038, 11541 & 11964 of 2018 C.R.P.(PD).No.1795 of 2018: M/s.Kotak Mahindra Bank Ltd., rep by its Vice President Dass India Tower, II Floor, No.3, II Line Beach, Parrys, Chennai 600 001. presently at No.39, 1st Floor, Ceebros Centre, Montieth Road, Egmore, Chennai 600 008. .. Petitioner Vs. 1.A.Anand Prasad 2.M/s.Ravishankar Industries Pvt. Ltd., rep by the Provisional Liquidator, Corporate Bhavan, Second Floor, No.29, Rajaji Salai, Chennai 600 001. .. Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 29.05.2018 passed in A.P.No.7 of 2018 on the file of the Debts Recovery Tribunal II, Chennai. For Petitioner : Mr.Omprakash, Senior Counsel assisted by Mr.Ilayarajkumar for M/s.Ramalingam and Associates For Respondents : Mr.A.L.Somiyaji, Senior Counsel for Mrs.Pushpa Menon (R1) R2 no appearance W.P.No.6667 of 2018: M/s.Kotak Mahindra Bank Ltd., No.39, 1st Floor, Ceebros Centre, Montieth Road, Egmore, Chennai 600 008 rep by its Vice President Srikanth Ramachandran .. Petitioner Vs. 1.The Recovery Officer, Debts Recovery Tribunal II, Chennai, Dewa Towers, Anna Salai, Vepery, Chennai 600 007. 2.The Commissioner of Police, Office of Commissioner of Police, Vepery, Chennai 600 007. 3.The Assistant Commissioner of Police, J-2, Adyar Police Station, Adyar, Chennai 600 020. 4.The Inspector of Police, J-2, Adyar Police Station, Adyar, Chennai 600 020. 5.A.Indira Anand @ A.Indrani .. Respondents Petition filed under Article 226 of the Constitution of India praying for issue of Writ of mandamus directing the respondents 2 to 4 to comply with the order of the 1st respondent passed under the Debts Recovery Tribunal Act and provide necessary police protection and assistance to the Advocate Commissioner appointed by the 1st respondent in executing the warrant thereto by acting on the request letters dated 12.02.2018 and 08.03.2018. For Petitioner : Mr.Omprakash, Senior Counsel assisted by Mr.Ilayarajkumar for M/s.Ramalingam and Associates For Respondents : No appearance R1 to R5 C O M M O N O R D E R
(Order of the Court made by M.DURAISWAMY,J.) Challenging the order passed in A.P.No.7 of 2018 in M.A.Nos.44 & 45 of 2018 in DRC No.5 of 2013, on the file of the Debts Recovery Tribunal-II, Chennai, the petitioner has filed the above Civil Revision Petition under Article 227 of the Constitution of India.
2.W.P.No.6667 of 2018 has been filed by the petitioner Bank to issue a Writ of mandamus to direct the respondents 2 to 4 to comply with the order of the 1st respondent passed under the Debts Recovery Tribunal Act and provide necessary police protection and assistance to the Advocate Commissioner appointed by the 1st respondent in executing the warrant thereto by acting on the request letters dated 12.02.2018 and 08.03.2018.
3.Since the issue involved in both the matters are inter-linked, by consent of the learned counsel on either side, the above Civil Revision Petition and the Writ Petition are taken up together and disposed of by this common order.
4.It is the case of the petitioner that the 2nd respondent availed loan from M/s.Ind Bank Merchant Banking Services Limited. Subsequently, the decree obtained by M/s.Ind Bank Merchant Banking Services Limited was assigned in favour of the petitioner Bank in the year 2006. The petitioner Bank filed O.A.No.84 of 2011 on the file of the Debts Recovery Tribunal II, Chennai seeking for recovery of a sum of Rs.15,14,19,212/- together with interest. An order of attachment was passed in I.A.No.216 of 2011 in O.A.No.84 of 2011. By order dated 19.11.2012, the Debts Recovery Tribunal II directed the defendants to pay the amount decreed to the petitioner - Bank and also ordered for issuance of Recovery Certificate for realization of the dues.
4.1.The respondents filed an appeal in A.I.R.No.9 of 2013 before the Debt Recovery Appellate Tribunal. However, the said appeal was dismissed by the Debt Recovery Appellate Tribunal. The Recovery Officer had proceeded with the execution of the Recovery Certificate DRC No.5 of 2013. The Debts Recovery Tribunal-II set aside the order of arrest made against one A.Manohar Prasad, against which an appeal was preferred by the petitioner before the Debt Recovery Appellate Tribunal, Chennai.
4.2.The son and daughter of A.Ravishankar Prasad, who is one of the debtors, filed M.A.No.157 of 2016 seeking for raising the order of attachment made by the Tribunal in I.A.No.216 of 2011. The Debts Recovery Tribunal-II, Chennai had passed an order raising the order of attachment. Against the order passed by the Tribunal, the petitioner had also filed an appeal before the Debt Recovery Appellate Tribunal in M.A.No.206 of 2011. The Recovery Officer appointed an Advocate Commissioner to take physical possession of the house property with the assistance of Police.
4.3.The 1st respondent, being the son of A.Manohar Prasad, filed M.A.Nos.44 & 45 of 2018 before the Recovery Officer seeking to stay the order dated 31.01.2018 passed in M.A.No.20 of 2018 and to restrain the enforcement of the said order. M.A.No.20 of 2018 was filed by Mrs.Indira Anand seeking to re-call the warrant and to set aside the order for taking possession. The applications in M.A.Nos.44 & 45 of 2018 were dismissed by the Recovery Officer, as not maintainable. Aggrieved over the same, the 1st respondent filed an appeal in A.P.No.7 of 2018 before the Debts Recovery Tribunal. The said appeal was allowed by the Debts Recovery Tribunal on 29.05.2018. Aggrieved over the order dated 29.05.2018 made in A.P.No.7 of 2018 on the file of the Debts Recovery Tribunal II, Chennai, the petitioner has filed the above Civil Revision Petition.
5.Mr.A.L.Somiyaji, learned senior counsel appearing for the 1st respondent raised a preliminary objection with regard to the maintainability of the Civil Revision Petition. The learned senior counsel submitted that without exhausting the appeal remedy available under the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993, the Civil Revision Petition filed under Article 227 of the Constitution is not maintainable.
6.Countering the submissions made by the learned senior counsel for the 1st respondent, Mr.Omprakash, learned senior counsel appearing for the petitioner submitted that since the Tribunal has passed an erroneous order, the Civil Revision Petition is maintainable without exhausting the appeal remedy.
6.1.In support of this contention, the learned senior counsel relied upon a judgment reported in (2015) 5 Supreme Court Cases 423 [Radhey Shyam and another Vs. Chhabi Nath and others] wherein the Larger Bench consisting of three Judges of the Hon'ble Supreme Court held that all the Courts in the jurisdiction of the High Court are subordinate to it and subject to its control and supervision under Article 227. Further, the Apex Court held that control of working of the Subordinate Courts in dealing with their judicial orders is exercised by way of statutory appellate or revisional powers, or power of superintendence under Article 227 and not by way of Writ jurisdiction under Article 226.
6.2.In the judgment reported in AIR 1964 SC 1419 [Thansingh Nathmal and others Vs. A.Mazid, Superintendent of Taxes] the Constitutional Bench consisting of five Judges of the Hon'ble Supreme Court held as follows:
...
The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restric- tions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up. 6.3.The Hon'ble Supreme Court of India in the judgments reported in (2018) 3 Supreme Court Cases 85 [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C.] and (2018) 1 Supreme Court Cases 626 [Agarwal Tracom Private Limited Vs. Punjab National Bank and others] held that the aggrieved party cannot challenge the SARFAESI proceedings directly by filing a Civil Revision Petition under Article 227 of the Constitution of India without exhausting the appeal remedy available to them.
7.In the case on hand, the petitioner Bank has filed the Civil Revision Petition under Article 227 of the Constitution of India without exhausting the appeal remedy available to them before the Debt Recovery Appellate Tribunal.
8.Therefore, following the ratio laid down by the Hon'ble Supreme Court in the judgments reported in AIR 1964 SC 1419 [Thansingh Nathmal and others Vs. A.Mazid, Superintendent of Taxes]; (2018) 3 Supreme Court Cases 85 [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C.] and (2018) 1 Supreme Court Cases 626 [Agarwal Tracom Private Limited Vs. Punjab National Bank and others], we are of the considered view that the Civil Revision Petition filed by the petitioner Bank without exhausting the appellate remedy before the Debt Recovery Appellate Tribunal is liable to be rejected.
9.In these circumstances, we are not inclined to entertain the Civil Revision Petition and the Writ Petition. Accordingly, the Civil Revision Petition and the Writ Petition are dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. It is open to the parties to file the impleading petitions before the Tribunal and if such applications are filed before the Tribunal, the Tribunal shall decide the same on merits and in accordance with law.
(MRS.V.K.TAHILRAMANI, CHIEF JUSTICE.) (M.DURAISWAMY)
28.09.2018
Index : Yes/No
Internet : Yes
Speaking /Non Speaking Order
va
To
1.The Recovery Officer,
Debts Recovery Tribunal II, Chennai,
Dewa Towers, Anna Salai,
Vepery, Chennai 600 007.
2.The Commissioner of Police,
Office of Commissioner of Police,
Vepery, Chennai 600 007.
3.The Assistant Commissioner of Police,
J-2, Adyar Police Station,
Adyar, Chennai 600 020.
4.The Inspector of Police,
J-2, Adyar Police Station,
Adyar, Chennai 600 020.
THE HON'BLE
MRS.V.K.TAHILRAMANI
CHIEF JUSTICE
AND
M. DURAISWAMY,J.
va
C.R.P(PD).No.1795 of 2018 and
C.M.P.No.10069 of 2018
and W.P.No.6667 of 2018 and
W.M.P.Nos.12037, 12038, 11541 & 11964 of 2018
28.09.2018