Allahabad High Court
Jitendra Kumar Mishra vs Punjab National Bank And Another on 13 January, 2021
Bench: Naheed Ara Moonis, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - C No. - 25215 of 2020 Petitioner :- Jitendra Kumar Mishra Respondent :- Punjab National Bank And Another Counsel for Petitioner :- Kamlesh Kumar Mishra Counsel for Respondent :- Sudha Pandey Hon'ble Naheed Ara Moonis,J.
Hon'ble Dinesh Pathak,J.
Heard Sri Kamlesh Kumar Mishra, learned counsel for the petitioner and Ms. Sudha Pandey, learned counsel for the respondents.
Against the proceeding undertaken under the SARFAESI Act 2002 the present writ petition has been filed with the following relief;
"1. Issue a writ, order or direction in the nature of certiorari quashing the impugned notice dated 12.10.2020 issued by the respondent Bank (Annexure No.11) and auction notice published in newspaper dated 9.10.2020 under Section 13 (12) of the Securitization Act and Rules 8 & 9 of Security Interest Enforcement Rules, 2002 (Annexure Nos. 1 & 3 to this writ petition).
2. Issue a writ order or direction in the nature of mandamus directing the respondent bank to grant a reasonable time to the petitioner to clear his dues in easy instalment.
3. Issue any other suitable writ order or direction in the nature, which this Hon'ble Court may deem fit and proper under the circumstances of the case.
4. Award the cost of the petition to the petitioner."
Learned counsel for the Bank has made a preliminary objection that against the proceeding under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 the petitioner has alternative remedy to approach the Debt Recovery Tribunal under Section 17 of the Act.
On the perusal of the notice dated 12.10.2020 under Section 13 (4) of the Act it transpires that the proceeding has been initiated pursuant to the steps taken under Section 13 (2) issuing demand notice against the petitioner and thereafter proceeded under Section 13 (4) of the Act read with Rule 8 (6) of the Security Interest (Enforcement) Rules, 2002.
We have considered the submissions advanced by the learned counsel for the parties.
The Hon'ble Supreme Court in the case of ICICI Bank Ltd. v. Umakanta Mohapatra, Civil Appeal Nos. 10243-10250 of 2018, decided on 05.10.2018, has held as under:
"Delay condoned.
Leave granted.
Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in Authorized Officer, State Bank of Travancore and Another VS Mathew KC., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non-Performing Assets (NPAs).
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:-
"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 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."The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
The appeals are allowed in the aforesaid terms.
Pending applications, if any, shall stand disposed of."
The Hon'ble Supreme Court in the case of C. Bright Vs. District Collector and others, Civil Appeal No. 3441 of 2020, decided on 05.11.2020, has held as under:
"21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors.21 held that 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 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. Hindon Forge Private Limited has held that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The Hon?ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. Thus, in view of the settled legal position, we find, in this case, no justification for invoking our extraordinary jurisdiction under Article 226 of the Constitution of India."
In the light of the principles enunciated by the Hon'ble Supreme Court we decline to entertain the present writ petition.
Accordingly, the writ petition is dismissed on the ground of availability of alternative remedy.
Order Date :- 13.1.2021 Shahnawaz