Calcutta High Court (Appellete Side)
Sajal Ranjan Dey & Ors vs The Central Bank Of India on 10 March, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1 In The High Court At Calcutta Constitutional Writ Jurisdiction Appellate Side Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 4627 (W) of 2011 Sajal Ranjan Dey & Ors.
v.
The Central Bank of India Mr Mukul Lahiri, Mr Sanjib Dawn and Mr Debasish Mukhopadhyay advocates, for the petitioners. Ms A. Rao, advocate, for the bank.
Heard on: March 10, 2011.
Judgment on: March 10, 2011.
The Court: - The petitioners in this art.226 petition dated March 7, 2011 are questioning a possession notice dated September 8, 2010 (at p.36) issued by the authorised officer of Central Bank of India under s. 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
Counsel for the petitioners argues as follows. In response to the s.13(2) notice dated June 15, 2010 the petitioners sent by post their objection dated August 5, 2010(at p.33). Without disposing of the objection according to provisions of sub-s.(3A) of s.13 and r.3A of the Security Interest (Enforcement) Rules, 2002 the authorised officer wrongfully took measures under s.13(4) of the Act. The provisions created the authorised officer's duty to consider the representation or objection and dispose of it. Since the provisions have not been complied with, the petitioners are entitled to approach the High Court under art.226, especially when the alternative remedy of appeal under s.17 of the Act, in view of the settled principles of law, cannot be a bar to approach the High Court under art.226.
Counsel for the bank submits as follows. The objection dated August 5, 2010 was never received by the bank. However, the one time settlement offer made by the letter dated March 1, 2011 (at p.41) has been considered by the bank that has turned down the offer. In view of the Supreme Court decision in United Bank of India v. Satyawati Tondon & Ors., AIR 2010 SC 3413, the petitioners' remedy, if any, was before the Tribunal under s.17 of the Act.2
I am unable to accept the argument that the remedy of appeal under s.17 of the Act is an alternative to the art.226 remedy. A remedy is alternative to the art.226 remedy when the aggrieved person has a right to choose one or the other. Hence it can be said that the remedies under art.227 and art. 226; s.482 of the Code of Criminal Procedure, 1973 and art. 226; suit and art.226 are alternatives. The party having a right to choose one remedy between two alternative remedies no longer remains entitled to seek the other remedy.
In this case, in my opinion, the proposition that availability of an alternative remedy is no bar to approach the High Court under art.226 will not apply. Rather the proposition that availability of a statutory remedy of appeal is no bar to approach the High Court under art.226 will apply. Hence the question that is relevant is whether in view of the statutory remedy of appeal available under s.17 the petitioners are entitled to approach the High Court under art.226.
The statutory remedy of appeal under s.17 is a remedy provided by a special statute charting a special course for the proceedings initiated thereunder. In my opinion, in such a case as this power under art.226 should not be exercised for derailing the proceedings when the statutory remedy of appeal is speedy and equally efficacious. It is not disputed that the petitioners were entitled to appeal under s.17. The questions raised in this case could be raised in the s.17 appeal as well.
Counsel for the bank has rightly cited the Supreme Court decision in United Bank of India v. Satyawati Tondon & Ors., AIR 2010 SC 3413 categorically holding that in such a case as this remedy of the aggrieved person is only before the Tribunal under s.17 of the Act. The decision of the Supreme Court in Kanaiyalal Lalchand Sachdev v. State of Maharashtra & Ors., (2011)2SCC 782 is also very categorical on the point.
For these reasons, I dismiss the petition. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)