Dismissed

Maheshwar Dutt Mishra Alias Maheshwar Dutt and 3 Others v. Punjab National Bank Thru.Authorized Officer Branch Manager Ayodhya and 3 Others

Allahabad HC15 Nov 2022/7988/2022

Case brief

AI extract

What is this about?

Borrowers whose mortgaged house was auctioned in bank recovery proceedings challenged the Debts Recovery Tribunal's refusal to extend time to pay the settled dues, offering a banker's cheque for the outstanding amount. The court held the writ petition not maintainable because an appeal lies to the Appellate Tribunal under Section 18 of the SARFAESI Act, and dismissed it.

What the court decided

AI extract

Maheshwar Dutt Mishra Alias Maheshwar Dutt and 3… — Banking and Recovery | Allahabad HC (2022)

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Court No. - 21

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Case :- WRIT - C No. - 7988 of 2022

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Petitioner :- Maheshwar Dutt Mishra Alias Maheshwar Dutt And 3 Others Respondent :- Punjab National Bank Thru.Authorized Officer Branch Manager Ayodhya And 3 Others Counsel for Petitioner :- Shrikant Mishra,Amarjeet Singh Rakhra Counsel for Respondent :- C.S.C.,Pashu Pati Pratap Singh,Praveen Dwivedi

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Hon'ble Mohd. Aslam,J.

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Heard Shrikant Mishra, learned counsel for the petitioners, Sri P.P. Singh, learned counsel for the respondent nos.1 to 4 and perused the record.

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The instant writ petition has been filed on behalf of the petitioner with the following prayer:-

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"A. Issue a writ, order or direction in the nature of certiorari setting aside the order dated 15.10.2022 passed by Debt Recovery Tribunal, Lucknow in Miscellaneous Application No.82 of 2021 filed in Seuritisation Application No.234 of 2021 (Abhay Dutt Mishra and others Vs. Punjab National Bank and another), annexed as Annexure No.1 to this writ petition.

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B. Issue a writ, order or direction in the nature of mandamus directing the respondent bank to accept the payment being made towards outstanding dues by means of bankers cheque dated 14.9.2021 prepared in its favour by the petitioners and release the mortgaged property from its charge.

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C. Issue a writ, order or direction in the nature of certiorari quashing the sale proceedings conducted by the respondent bank pursuant to sale notice dated 18.8.2021 and all other consequential actions taken by the respondent bank."

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It is submitted by learned counsel for the petitioners that the present petition is being filed by the petitioners being aggrieved by the mala fide action of the respondent bank in hastily selling the house of the petitioners situated at House No.3, Sangam Vihar Kaushpuri Colony, Faizabad (now Ayodhya), mortgaged with the respondent bank as security for availing the overdraft loan account facility offered by the respondent bank, to the respondent no.3 inspite of the earnest requests of the petitioner to grant them some time to clear the outstanding dues payable to the respondent bank. The respondent bank, while acting in collusion with the respondent no.3, deliberately and with the intention to deprive the petitioners of their property, frustrated

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the proposal for one time settlement submitted by the petitioners under the one time settlement scheme floated by respondent bank inspite of the petitioners having deposited an amount of Rs.11,00,000/- as required by the respondent bank for consideration of their proposal and still willing and ready to pay the entire outstanding dues. It is further submitted that the present petition assails the order dated 15.10.2022 passed by the Debts Recovery Tribunal, Lucknow in completely perverse manner rejecting the application of the petitioners seeking grant of extension of time to clear the outstanding dues of the petitioners payable to the respondent bank within a period of two months in terms of settlement recorded in order dated 5.10.2021 passed by Debts Recovery Tribunal, Lucknow. It is further submitted that the Debts Recovery Tribunal completely failed to consider and appreciate that the petitioners were put under extreme duress by the respondent bank when they accepted the terms of settlement dictated by the respondent bank, as recorded in order dated 5.10.2021 passed by Debts Recovery Tribunal, Lucknow, the petitioners were facing compelling circumstances since the respondent bank, notwithstanding the pendency of the securitisation application preferred by the petitioners, had already hastily and in a completely arbitrary manner auctioned the property of the petitioners and was about to be confirmed in favour of respondent no.3, thus the petitioners left with no other option and were coerced to accept the terms unilaterally dictated by the respondent bank with respect to repayment of the entire outstanding dues within a short time of two months in order to protect the roof over their head from being sold by the respondent bank to a third party, even when the one time settlement scheme which was floated by the respondent bank itself provided for a period of 90 days extendable upto 180 days for clearing the outstanding dues of the respondent bank, hence the impugned order dated 15.10.2022 has been passed without non-application of judicial mind, which is liable to be set aside. It is further submitted that in the year, 2016, the petitioners had availed an overdraft loan facility under the oriental mortgage scheme and also a term loan from the respondent bank for establishment of a school at village Shakhupara, Raebareli Road, Ayodhya. The aforesaid facilities were availed in the form of two separate loan accounts vis overdraft loan account no.02945085002245 and term loan account no.02947025002887 respectively. The present petition has been filed being aggrieved by the proceedings initiated by the respondent bank under the Securitisation and Reconstruction of the Financial Assets & Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act"), relate only to the overdraft loan account wherein the principal borrowing

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was of Rs.40,00,000/- which remained sanctioned from the year 2016 to 2020, without any default on the part of the petitioners. It is further submitted that on 31.1.2020, the overdraft loan account of the petitioners was as Non-Performing Asset ("NPA") by the respondent bank as the respondent failed to make payments towards the aforesaid account on account of COVID-19 pandemic and the slowdown in the business as a result thereof. The aforesaid overdraft facility was utilized for development and establishment of a school, however, on account of the COVID-19 pandemic, the school failed to induct sufficient students, which resulted in the total failure of the project. It is further submitted that realizing the extraordinary situation created due to the effects of the COVID-19 pandemic which had adversely affected not only the business operations but also the income of the public in general, a Circular No.38/2020 dated 9.9.2020 was issued by the Head Office Respondent Bank, wherein an one time settlement scheme was floated in order to reduce/settle the increasing number of NPA accounts as a result of the pandemic. The scheme was applicable to all NPA accounts upto Rs.5 crores and was to remain in force till 31.3.2021. It is further submitted that as soon as the petitioners' overdraft loan account was declared NPA by the respondent bank, the petitioners, on 4.12.2020 made an application to the respondent bank for availing the benefit of the aforesaid one time settlement scheme and also deposited two cheques of Rs.5 lacs and Rs.3 lacs respectively towards consideration of the same. It is further submitted that even though the OTS proposal of the petitioners was pending before respondent bank, the respondent bank instead of deciding the aforesaid application/proposal of the petitioners first, in the most high handed manner, proceeded against the mortgaged residential property of the petitioners under SARFAESI Act and issued sale notice dated 22.2.2021, wherein the property in question was put on auction for recovering the outstanding amount payable towards the overdraft loan account. It is further submitted that being aggrieved by the arbitrary and perverse action of the respondent bank in putting the property in question on auction, the petitioners preferred Writ Petition No.7662 (M/B) of 2021 before this Court, however, the respondent bank in the most unethical manner informed the Court that the OTS proposal of the petitioner had already been disposed of vide letter dated 27.1.2021, which had put some precondition with the borrower for considering his OTS and since the petitioner failed to meet the precondition, as such the OTS stood rejected. It is further submitted that the respondent bank never communicated to the petitioner its order dated 27.1.2021 whereby the OTS proposal of the petitioners was disposed of and the petitioner was provided a copy of the same

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only on hearing dated 19.3.2021 by the respondent bank. It is further submitted that this Court by means of the order dated 19.3.2021, pleased to dispose of the aforesaid writ petition and required the petitioners to approach the Debts Recovery Tribunal, Lucknow by filing a securitisation application under Section 17 of the SARFAESI Act and in pursuance of the order dated 19.3.2021, the petitioners preferred Securitisation Application No.234 of 2021 before the Debts Recovery Tribunal, Lucknow challenging the sale notice dated 22.2.2021 issued by the respondent bank. It is further submitted that the order dated 27.1.2021 passed by the respondent bank, requiring the petitioners to pay a further sum of Rs.3 lacs for consideration of their OTS proposal within seven days from the date of receipt of the order, was only provided to the petitioners on hearing dated 19.3.2021 in the aforesaid writ petition filed by the petitioners and in pursuance of the aforesaid order, the petitioners fortified their OTS proposal by depositing a cheque of Rs.3 lacs vide communication dated 24.3.2021, which was duly credited in the account of the respondent bank. Since no bids were received pursuant to the sale notice dated 22.2.2021 issued by the respondent bank and petitioners were hopeful that their case would be considered favourably by the respondent bank. It is further submitted that however to the utter shock of the petitioners, the respondent bank instead of accepting the OTS proposal of the petitioners, maliciously issued another sale notice dated 18.8.2021 putting the property in question again on auction inspite of the petitioners having complied with the terms of the order dated 27.1.2021 and having deposited the sum of Rs.3 lacs as required by the respondent bank within the stipulated period of seven days from the receipt of the order. Thus, as a result of the mischief and the mala fide action of the respondent bank, the petitioners' OTS proposal got frustrated. It is further submitted that the petitioners forthwith challenged the second sale notice dated 18.8.2021 issued by the respondent bank in their pending securitisation application, by preferring the amendment application dated 8.9.2021 along with application for interim relief seeking stay of the auction sale in pursuant to the aforesaid sale notice. It is further submitted that the amendment application, seeking to challenge the second sale notice dated 18.8.2021 preferred by the petitioners could not be decided due to paucity of time and unavailability of the Presiding Officer at the end of the Debt Recovery Tribunal and as a consequence thereof, the respondent bank succeeded in its mischievous design to auction the residential property of the petitioners mortgaged with it in collusion with the auction purchaser. The auction was conducted by the respondent bank on 17.9.2021 and the respondent no.3 was declared as highest bidder therein. It is further submitted that the respondent bank

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having successfully auctioned the residential property of the petitioners mortgaged with it without the intervention of the Debt Recovery Tribunal, the petitioners were put under extreme duress and under compelling circumstances were coerced to enter into compromise with the respondent bank, the terms whereof were recorded in the order of the Debts Recovery Tribunal dated 5.10.2021 passing in Securitisation Application No.234/2021. It is further submitted that even the Circular No.38 of 2020 dated 9.9.2020 vide which the one time settlement scheme was floated by the respondent bank, provided for a period of 90 days extendable upto 180 days for clearing the outstanding dues of the respondent bank, however, the petitioners were put in a corner and were left with no other option but to accept the terms unilaterally dictated by the respondent bank with respect to repayment of the entire outstanding dues within a short time of two months in order to protect the roof over their head from being sold by the respondent bank to a third party. It is further submitted that when the petitioners obtained the certified copy of this order dated 5.10.2021 passed by the Debts Recovery Tribunal, Lucknow, they found that certain errors with regard to the quantum of the amount to be paid by the petitioners to the respondent bank in terms of the settlement entered into with the respondent bank had crept in the aforesaid order and as such the petitioners preferred a correction application before the Debts Recovery Tribunal, Lucknow. It is further submitted that despite the best efforts of the petitioners, since the petitioners were unable to arrange enough money to clear entire outstanding dues of the respondent bank within a period of two months, the petitioners filed a supplementary affidavit in aforesaid Miscellaneous Application No.57 of 2021 seeking extension of time for complying with the order dated 5.10.2021 passed by the Debts Recovery Tribunal, Lucknow. It is further submitted that thereafter the petitioners preferred Miscellaneous Application No.82 of 2021 dated 14.12.2021 before the Debts Recovery Tribunal seeking extension of time. It is further submitted that the aforesaid correction application filed in Securitisation Application seeking correction of order dated 5.10.2021 and application for extension of time, kept pending before the Debts Recovery Tribunal, Lucknow from 1.11.2021 and 14.11.2021 respectively, and the respondent bank taking advantage of non-disposal of the aforesaid applications, in the most malicious manner on 15.12.2021, confirmed the sale in respect of the property of the petitioners mortgaged with the respondent bank in favour of respondent no.3 and thereby created third party rights to frustrate the claim of the petitioners. It is further submitted that the petitioners are willing of clearing the entire loan amount pertaining to their overdraft loan

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account. The petitioners have always been and are ready to deposit the remaining outstanding amount dues against their defaulting loan account vis overdraft loan account no.02945085002245 and are even willing to pay the said amount instantly to the respondent bank and with the view to demonstrate the bona fides of the petitioners, the petitioners are enclosing a copy of the bankers cheque of Rs.38,94,202/prepared in favour of the respondent bank. This amount of Rs.38,94,202/- is the exact amount of outstanding in the overdraft loan account of the petitioners, as is evident from the order dated 29.3.2021 passed by the Debts Recovery Tribunal, Lucknow in Miscellaneous Application No.82/2021.

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Learned counsel for the respondents has submitted that according to provision of Section 17 of the SARFAESI Act, any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, (may make an application along with such fee, as may be prescribed) to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken, by way of amendment, auction and explanation has been added under Section 17(1) of the SARFAESI Act, wherein it has been clarified that the communication of the reasons to the borrower in terms of Section 13(3A) shall not constitute a ground for filing an application under Section 17(1). It is further submitted that under Section 17(5) of the SARFAESI Act, any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application. Proviso to this Section also envisaged extension of time, but the date for adjudication of application is four months, if the Debts Recovery Tribunal fails to decide the application within maximum period of four months, any party may move an application, in such form as may be prescribed, before the Appellate Tribunal for issuing a direction to the Debts Recovery Tribunal to dispose of the such application, expeditiously. Section 18 provides for Appeal to Appellate Tribunal. It is further submitted the petitioners are aggrieved by the order of Debts Recovery Tribunal, they may file Appeal to Appellate Tribunal and reliance has been place on the law laid down by Hon'ble Supreme Court in "United Bank of India Vs. Satyawati Tondon and others, (2010) 8 SCC 110".

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I have given thoughtful considerations to the rival contention of learned counsel for the parties and have gone through the record as well as provision of Sections 13, 17 & 18 of SARFAESI Act, which reads as follows:-

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"13. Enforcement of security interest:-

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(1). Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882 ), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act.

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(2). Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as on- performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4).

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(3). The notice referred to in sub- section (2) shall give details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower.

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(4). In case the borrower fails to discharge his liability in full within the period specified in sub- section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

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(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset;

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(b) take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realize the secured asset;

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(c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor;

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(d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.

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(5). Any payment made by any person referred to in clause (d) of subsection (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower.

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(6). Any transfer of secured asset after taking possession thereof or take over of management under sub- section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset.

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(7). Where any action has been taken against a borrower under the provisions of sub- section (4), all costs, charges and expenses which, in

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the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests.

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(8). If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the s cured creditor, and no further step shall be taken by him for transfer or sale of that secure asset.

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(9). In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub- section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three- fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors: Provided that in the case of a company in liquidation, the amount realized from the sale of secured assets shall be distributed in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956 ): Provided further that in the case of a company being wound up on or after the commencement of this Act, the secured creditor of such company, who opts to realize his security instead of relinquishing his security and proving his debt under proviso to sub-section (1) of section 529 of the Companies Act, 1956 (1 of 1956 ), may retain the sale proceeds of his secured assets after depositing the workmen' s dues with the liquidator in accordance with the provisions of section 529A of that Act: Provided also that liquidator referred to in the second proviso shall intimate the secured creditor the workmen's dues in accordance with the provisions of section 529A of the Companies Act, 1956 (1 of 1956 ) and in case such workmen' s dues cannot be ascertained, the liquidator shall intimate the estimated amount of workmen's dues under that section to the secured creditor and in such case the secured creditor may retain the sale proceeds of the secured assets after depositing the amount of such estimate dues with the liquidator: Provided also that in case the secured creditor deposits the estimated amount of workmen' s dues, such creditor shall be liable to pay the balance of the workmen's dues or entitled to receive the excess amount, if any, deposited by the secured creditor with the liquidator: Provided also that the secured creditor shall furnish an undertaking to the liquidator to pay the balance of the workmen's dues, if any. Explanation.For the purposes of this sub-section,-

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(a) "record date" means the date agreed upon by the secured creditors representing not less than three- fourth in value of the amount outstanding on such date.

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(b) "amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor.

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(10). Where dues of the secured creditor are not fully satisfied with the

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sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower.

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(11). Without prejudice to the rights conferred on the secured creditor under or by this section, secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measured specifies in clause (a) to (d) of sub- section (4) in relation to the secured assets under this Act.

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(12). The rights of a secured creditor under this Act may be exercised by one or more of his officers authorised in this behalf in such manner as may be prescribed.

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(13). No borrower shall, after receipt of notice referred to in sub- section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor."

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17. Application against measure to recover secured debts:-

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(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, 1[may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken:

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[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]

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[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 borrower) to make an application to the Debts Recovery Tribunal under sub-section (1) of section 17.] [(1A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction-

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(a) the cause of action, wholly or in part, arises;

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(b) where the secured asset is located; or

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(c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.]

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[(2) The Debts Recovery Tribunal shall consider whether any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder.]

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[(3). If, the Debts Recovery Tribunal, after examining the facts and

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circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order,-

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(a) declare the recourse to any one or more measures referred to in-sub-section (4) of section 13 taken by the secured assets as invalid and (b) restore the possession of secured assets or management of the secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13].

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(4). If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section l3 to recover his secured debt.

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[(4A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,-

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(a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of section 13 of the Act; and

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(ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or subclause (b) or sub-clause (c) or sub-clause (d) of sub-clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act.]

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(5). Any application made under sub-section (1) shall be dealt with by the Debts Recovery Tribunal as expeditiously as possible and disposed of within sixty days from the date of such application:

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Provided that the Debts Recovery Tribunal may, from time to time, extend the said period for reasons to be recorded in writing, so, however, that the total period of pendency of the application with the Debts Recovery Tribunal, shall not exceed four months from the date of making of such application made under sub-section (1).

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(6). If the application is not disposed of by the Debts Recovery Tribunal within the period of four months as specified in sub-section (5), any party

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to the application may make an application, in such form as may be prescribed, to the Appellate Tribunal for directing the Debts Recovery Tribunal for expeditious disposal of the application pending before the Debts Recovery Tribunal and the Appellate Tribunal may, on such application, make an order for expeditious disposal of the pending application by the Debts Recovery Tribunal.

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(7). Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of application in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and the rules made thereunder.]

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18. Appeal to Appellate Tribunal.-

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(1). Any person aggrieved, by any order made by the Debts Recovery Tribunal 2[under section 17, may prefer an appeal along with such fee, as may be prescribed] to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal.

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[Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:]

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[Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less:

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Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso.]

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(2). Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

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In view of the aforesaid provisions, if the petitioner is aggrieved by the order of Debts Recovery Tribunal or his application is not being decided within the prescribed period, he may approach to Appellate Tribunal for issuing a direction to the Debts Recovery Tribunal to decide the application or objection of the borrower and such application or objection shall be disposed of within time fixed by the Appellate Tribunal. Petitioner or borrower has alternative remedy to challenge the order of the Debts Recovery Tribunal before the Appellate Tribunal in accordance with provisions of Section 18 of the SARFAESI Act, therefore, in event of alternative remedy, the instant petition is not maintainable in view of law laid down by Hon'ble Supreme Court in "United Bank of India Vs. Satyawati Tondon and others (supra)".

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From perusal of the instant petition, it transpires that the application has been confirmed, therefore, in event of tendering

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the amount of the dues by cheques along with the instant petition is nothing to do with the maintainability of this petition because the petitioners may go and challenge the same before the Appellate Tribunal as provided under Section 18 of SARFAESI Act.

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In such circumstances, I do not find any ground to interfere with the impugned order. Accordingly, the instant writ petition is dismissed .

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Order Date :- 15.11.2022 Anil K. Sharma

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Digitally signed by ANIL KUMAR SHARMA Date: 2022.11.21 14:17:59 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Maheshwar Dutt Mishra Alias Maheshwar Dutt and 3 Others v. Punjab National Bank Thru.Authorized Officer Branch Manager Ayodhya and 3 Others

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Maheshwar Dutt Mishra Alias Maheshwar Dutt and 3 Others v. Punjab National Bank Thru.Authorized Officer Branch Manager Ayodhya and 3 Others

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