Karnataka High Court
Sri.S.J.Lakshminarasimha Shastry vs Bank Of India on 10 November, 2020
Author: P.B.Bajanthri
Bench: P.B. Bajanthri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
WRIT PETITION NO.56779 OF 2014(GM-DRT)
BETWEEN:
SRI.S.J.LAKSHMINARASIMHA SHASTRY
S/O.SURYANARAYANA SHASTRY
AGED ABOUT 70 YEARS
RESIDING AT NO.2074
S.P.M.ROAD
SHIMOGA-577 202
... PETITIONER
(BY SRI. RAKSHITH JOIS.Y.P. FOR SRI. SHOWRI.H.R.
ADVOCATE)
AND:
BANK OF INDIA
REPRESENTED BY ITS CHIEF MANAGER
FIRST CROSS, GARDEN AREA
SHIMOGA-577 201
ALSO AT
REGIONAL BRANCH MANAGER
ASSET RECOVERY BRANCH
NO.11, K.G.ROAD
BANGALORE-560 009
... RESPONDENT
(BY SRI.M.MOHAMED IBRAHIM, ADVOCATE)
THIS WRIT PETITION FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
2
QUASH THE ORDER DATED 03.12.2014 AT ANNEX-M,
PASSED BY THE DEBTS RECOVERY TRIBUNAL,
BANGALORE IN O.A.NO.39/2010 ALLOWING THE I.A.
UNDER SECTION 22(2)(h) OF THE RDDBFI ACT FILED
BY THE RESPONDENT SEEKING AMENDMENT OF THE
ORIGINAL APPLICATION AND ETC.,
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING
(OPTIONAL) THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In the instant petition, petitioner has prayed for the following reliefs:-
a) Issue a writ of certiorari quashing the order dated 03.12.2014 at Annexure-M, passed by the Debts Recovery Tribunal, Bangalore in O.A.No.39/2010 allowing the I.A. under Section 22(2)(h) of the RDDBFI Act filed by the respondent seeking amendment of the Original Application and
b) Pass such other writ or order as may be deemed fit by this Honourable Court in the facts and circumstances of the case; and
c) allow this writ petition with costs to meet the ends of justice.3
2. Vinayaka Industries had availed loan on 26.02.1990 for a sum of Rs.1,75,000/- from the respondent-Bank and the petitioner is the guarantor. Due to non-repayment of loan and interest amount, respondent -Bank filed O.S.No.195/1998 for recovery of Rs.7,91,572.95/-. Suit was preliminarily decreed on 07.04.2001. Thereafter, F.D.P. proceedings was lodged by the respondent-Bank for a sum of Rs.14,53,533.05/-. During the pendency of F.D.P. proceedings, the same was withdrawn by filing a memo on behalf of the respondent-Bank in view of the changed circumstances that they can avail the remedy before the Debts Recovery Tribunal. Consequently, O.A.No.39/2010 was presented under Section 31-A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, 'RDDBFI Act, 1993') which is stated to have been amended as the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 2000. Petitioner filed a written statement in 4 O.A.No.39/2010 on 08.04.2010. He has also filed I.A. for rejection of O.A.No.39/2010. The respondent- Bank filed objection to the I.A. In this back drop, on 05.12.2013, respondent-Bank noticed that in filing O.A.No.39/2010 wrongly they have quoted Section 31-A instead of Section 19 of the RDDBFI Act, 1993. Such application was considered by the Tribunal and proceeded to allow the I.A. on 03.12.2014. Thus, petitioner feeling aggrieved by the order dated 03.12.2014 passed on I.A.No.5157/2013 presented this petition.
3. Learned counsel for the petitioner vehemently contended that the O.A.No.39/2010 before the Debts Recovery Appellate Tribunal is not maintainable. The respondent-Bank had admitted relating to filing of O.A. under Section 31-A of the RDDBFI Act, 1993. Therefore, Debts Recovery Tribunal has erred in allowing I.A.No.5157/2013 permitting the respondent-Bank to rectify the 5 provision quoted in the O.A. If the amendment is permitted to the respondent-Bank then the scope of relief would be very vide whereby limitation issue would not be a hurdle for the respondent-Bank. Thus, Tribunal committed error and impugned order is liable to be set aside.
4. Per contra, learned counsel for the respondent submitted that the present writ petition is not maintainable in view of Section 20 of the RDDBFI Act, 1993. He has cited Apex Court decision in the case of T.P.Vishnu Kumar Vs. Canara Bank reported in (2013) 10 SCC 652.
5. Learned counsel for the petitioner countered the remedy of appeal and citation cited on behalf of the respondent-Bank while furnishing the following decisions:-
1) Harbanslal Sahnia Vs. Indian Oil Corporation Ltd., reported in 2003(2) SCC107.
2) Hotel Sharada Paradise Vs. The Secretary to Government of India, Department of Finance, New Delhi reported in (2015) 3 Kant LJ 644.6
3) Authorized Officer, State Bank of Travancore & Another Vs. Mathew K.C (2018) 3 SCC 85.
4) Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and Others reported in (2015) 10 SCC 203.
6. Heard the learned counsel for the parties.
7. Undisputed facts are that Vinayaka Industries had availed loan on 26.02.1990 for a sum of Rs.1,75,000/- from the respondent-Bank and the petitioner was a guarantor. In not repaying the loan along with the interest accrued amount to the respondent-Bank, the respondent-Bank proceeded to initiate proceedings against the Vinayaka Industries and petitioner-guarantor. The respondent-Bank initiated proceedings in O.S.No.195/1998 they had the preliminary decree in favour of them to recover a sum of Rs.7,91,572.95/-. Consequently, F.D.P. proceedings were initiated in F.D.P.No.30/2004 and it was withdrawn on 17.06.2009 in view of changed circumstances the respondent-Bank has a remedy under the RDDBFI Act, 1993 before the Debts 7 Recovery Tribunal. Thus, O.A.No.39/2010 was presented. Respondent-Bank had noticed that there was an error in quoting provision while filing the O.A.No.39/2010. In order to rectify the relevant section, I.A.5157/2013 was presented. After due consideration and it is only a quoting of a wrong provision, Debts Recovery Tribunal proceeded to allow the I.A. The respondent-Bank raised preliminary issue relating to maintainability of the present petition that the petitioner had statutory remedy of appeal under Section 20 of the RDDBFI Act, 1993. In the present writ petition, the petitioner has not stated that he has a statutory remedy of appeal under Section 20 of the RDDBFI Act, 1993. Thus, he has suppressed the information that the petitioner had a statutory remedy of appeal under Section 20 of RDDBFI Act, 1993. The petitioner has not approached this Court with clean hands. More over, Section 20 of the RDDBFI Act, 1993 provides for statutory remedy before Debts Recovery Appellate 8 Tribunal against interlocutory order passed by the Debts Recovery Tribunal. The Apex Court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 at paragraph 20 has held as under:
"20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s.Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168}, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-
"The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:
(a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;9
(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public policy or barred by any valid law; and host of other factors.
(g) Cost and such other relief deems fit to grant under the circumstances of the case, in the interest of justice and equity.
(Emphasis supplied)
8. In identical matter in the case of T.P.Vishnu Kumar's case cited supra wherein it is held in paragraphs 10 and 11 as under:-
"10. Powers of the High Court under Article 226 cannot be invoked in the matter of recovery of dues under the Act, unless there is any statutory violation resulting in prejudice to the party or where such proceedings or action is wholly arbitrary, unreasonable and unfair. When the Act itself provides is wholly arbitrary, unreasonable and unfair. When the Act itself provides for a mechanism, by an appeal under Section 20 of the Act, in our view, the High Court is not justified in invoking jurisdiction under Article 226 of 10 the Constitution of India to examine that the rejection of the applications by the Tribunal was correct or not. The petitioner and the contesting respondents have no case that either the Bank or the Tribunal had violated any statutory provisions by rejecting their applications.
11. A writ petition was preferred against the rejection of applications and the same were entertained by the learned Single Judge and decided on merits and which in our view is impermissible while exercising its jurisdiction under Article 226 of the Constitution. If the correctness or otherwise of each and every interim order passed by the Tribunal is going to be tested in a writ court, it will only defeat the object and purpose of establishing such Tribunal. We have already noticed that due to the intervention of the writ court, the matter got delayed for four years defeating the very purpose and object of the Act. We, therefore, find no merit in these petitions and the same are dismissed."
In view of the aforesaid two decisions, the cited decisions on behalf of the petitioner has no assistance. It is to be noted that writ petition would be entertained even in respect of statutory remedy available only on certain exceptions like if an authority violates any statutory rule or without jurisdiction. In the present case, question is only with 11 regard to the order dated 03.12.2014 passed on I.A.No.5157/2013. Petitioner do not have the aforesaid exception so as to entertain the writ petition that apart petitioner has suppressed the fact that he has a statutory remedy of appeal in the pleadings and he has not approached this Court with clean hands to the extent that he has statutory remedy of appeal but still he intends to invoke writ jurisdiction. In view of these facts and circumstances, petitioner has not made out case. Accordingly, writ petition stands dismissed.
Sd/-
JUDGE KPS