Allowed

State Bank of India v. M/S. Samrat Ashok Exports Ltd.

Karnataka HC23 May 2023WP/9639/2018

Case brief

AI extract

What is this about?

High Court allowed writ petition challenging Recovery Officer order recalling property attachment. Court held that despite statutory appeal time-bar, writ jurisdiction was maintainable to rectify legal error ignoring prior binding orders on title heirs under constructive res judicata principles.

What did the court decide?

Impugned order dated 31.01.2017 quashed; respondent (Recovery Officer) directed to proceed with recovery proceedings concerning the scheduled property.

State Bank of India Vs M/S. Samrat Ashok Exports Ltd. — Banking and Recovery | Karnataka HC (2023)

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WP No. 9639 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI WRIT PETITION NO. 9639 OF 2018 (GM-DRT)

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BETWEEN:

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STATE BANK OF INDIA, A BODY CORPORATE CONSTITUTED UNDER THE PROVISIONS OF THE STATE BANK OF INDIA ACT, 1955 (23 OF 1955) AND THE SUCCESSOR TO STATE BANK OF TRAVANCORE UNDER THE ACQUISITION OF STATE BANK OF TRAVANCORE UNDER ORDER NO.G.S.R.160(E) DATED 22.02.2017 PASSED BY THE CENTRAL GOVT. UNDER SECTION 35 OF THE STATE BANK OF INDIA ACT, 1955 (23 OF 1955) AND HAVING INTER-ALIA STRESSED ASSETS MANAGEMENT BRANCH, WITH ADDRESS AT 2^ND FLOOR, OFFICE COMPLEX BUILDING, LHO COMPLEX, 65, ST. MARKS ROAD, BENGALURU, REP. BY ITS CHIEF MANAGER, MR. RATAN KUMAR SINHA, AGED ABOUT 52 YEARS, S/O LATE M.M. PRASAD, C/O APPLICANT.

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…PETITIONER

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[BY SRI. G.KRISHNA MURTHY, SR. COUNSEL FOR SRI. VEERENDRA PATIL, ADVOCATE (PH)]

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AND:

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M/S. SAMRAT ASHOK EXPORTS LTD., (REP BY THE OFFICIAL LIQUIDATOR) O/O OFFICIAL LIQUIDATOR, THE HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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MR. PRAVEEN CHANDER CHUGH, C/O NO.85/1, SHAKTHI BUILDING, K.H.ROAD, BENGALURU-560 027.

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MR. ASHOK CHUGH, C/O NO.85/1, SHAKTHI BUILDING, K.H.ROAD, BENGALURU-560 027.

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MR. DAVINDER KUMAR (DIED) REP. BY SMT. SUSHEELA, W/O LATE DAVINDER KUMAR,

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AGED ABOUT 66 YEARS, C/O NO.85/1, SHAKTHI BUILDING, K.H.ROAD, BENGALURU-560 027.

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MR. SHALEEN CHUGH, C/O NO.85/1, SHAKTHI BUILDING, K.R.ROAD, BENGALURU-560 027.

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MRS. SARITHA CHUGH, C/O NO.85/1, SHAKTHI BUILDING, K.H.ROAD, BENGALURU-560 027.

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M/S. KHODAY INDIA LIMITED, REGD. OFF: "BREWERY HOUSE", KANAKAPURA ROAD, BANGALORE, HAVING ADMINISTRATIVE OFFICE: NO.612, XV CROSS, SARAKKI I PHASE, 100 FEET ROAD, J.P.NAGAR, BENGALURU - 560 078.

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M/S. M & S MARKETING COMPANY & M/S. M & S BOTTLING COMPANY OFFICE: PLOT NO.64, STREET NO.1, SAGAR SOCIETY, ROAD NO.2, BANJARA HILLS, HYDERABAD-500 033.

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THE RECOVERY OFFICER-1, DEBTS RECOVERY TRIBUNAL-I, SECOND FLOOR, JEEVAN MANGAL BUILDING, NO.4, RESIDENCY ROAD, BENGALURU - 560 025.

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…RESPONDENTS

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[BY SRI. K.S.MAHADEVAN, ADV., FOR OFFICIAL LIQUIDATOR FOR R1 V/O DATED 09.08.2021; NOTICE TO R2 TO 6 IS DISPENSED WITH; SRI. GURUMURTHY M., ADV., FOR R7 (PH);

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SRI. ABHINAV R., ADV. FOR R8 (PH); NOTICE TO R9 IS SERVED AND UNREPRESENTED]

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 31.01.2017 PASSED BY THE RECOVERY OFFICER-1 OF DEBTS RECOVERY TRIBUNAL/THE RESPONDENT NO.9 (ANNEXURE-A TO THE WRIT PETITIONER) AND/OR TO DIRECT THAT THE DECISION OF THE IMPUGNED ORDER DATED 31.01.2017 THROUGH THE CLAIM PETITIONS FILED UNDER RULE (11) OF THE SECOND SCHEDULE TO THE INCOME TAX ACT, 1961 IS ERRONEOUS AND NON-BINDING ON THE PETITION AND TO FURTHER DIRECT THE RESPONDENT NO.9 TO INITIATE RECOVERY PROCEEDINGS AGAINST

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THE SCHEDULE PROPERTY, WITHOUT CONSIDERING THE CLAIMS SET UP BY THE RESPONDENT NO.7 AND 8 AS THE OBJECTORS NO.1 AND 2.

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THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 31.03.2023, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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ORDER

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Challenging impugned order dated 31.01.2017 bearing DRC.no.1709 arising out of O.A.no.521/1999 passed by Recovery Officer-I, Debt Recovery Tribunal, Bengaluru, ('DRT' for short) at Annexure-T and for declaration of said order as illegal and not binding on petitioners with direction to proceed with recovery proceedings in DRC no.1709 in respect of petition property etc., this writ petition is filed.

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Sri. G. Krishnamurthy, learned Senior Counsel appearing for Sri Veerendra Patil, advocate for petitioner submitted that petitioner - State Bank of India (' SBI ' for short) was constituted under State Bank of India Act, 1955 and was successor to State Bank of Travancore (' SBT ' for short). It was submitted that SBT had filed O.A.no.521/1999 (hereinafter ' OA ' for short) before DRT for recovery of dues of Rs.30,81,09,931/from respondents no.1 to 6 herein. It was stated that respondent no.1 - Company was under liquidation through Court and respondents no.2 to 5 being it's Directors had executed personal guarantee in favour of bank for it's dues. It

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was submitted that said OA was allowed on 03.09.2001 and recovery certificate came to be issued on 28.03.2002 vide DRC.no.1709 for Rs.45,83,60,616.36/-.

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It was submitted that for recovery of said amount, proceedings were initiated before respondent no.9. In said proceedings, respondent no.7 (' Objector no.1, ' for short) filed objections stating that it was absolute owner in possession of property bearing no.612, situated at XV Cross, 100 ft. Road, Sarakki, Phase-I, J.P. Nagar Extension, Ward no.57, Bengaluru (' scheduled property ' for short). It was stated that objector no.1 had purchased scheduled property from Smt.Sushila, legal representative of respondent no.4 - Sri. Devindar Kumar, under sale deed dated 19.04.2002.

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It was submitted that on 17.06.2004, respondent no.9 issued demand notices to all debtors. On 17.04.2005, objector no.1 entered appearance and filed objections claiming to be bonafide purchaser of schedule property and seeking for deletion of said property from recovery certificate. A separate application/obstruction petition seeking for deletion of schedule property from proclamation was also filed.

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On 24.08.2005, obstruction application of objector no.1 was rejected. Challenging said order, appeal in A.O.R.no.16/2005 was filed before DRT, same was dismissed on 05.02.2008 and reached finality. Thereafter, on 07.08.2012 respondent no.9 issued fresh proclamation against schedule property. At this stage, objector no.1 filed objections on 05.11.2012 under Rule 11(1) of Schedule - II of Income Tax Act, 1961 (' IT Act ' for short) for setting aside proclamation.

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By order dated 04.07.2013, objections were dismissed on ground that claim was already adjudicated as per orders dated 24.08.2005 and 05.02.2008. Said order was challenged before DRT in A.O.R.no.9/2013. On 18.08.2014, same was dismissed with observation that in case objector intended to enforce sale deed, they were required to clear loan and neither gift deed in favour of Smt.Sushila nor sale deed in favour of objector no.1 would come in way for recovery of money. Said order was questioned by filing appeal before Debt Recovery Appellate Tribunal (‘ DRAT ’ for short). Along with appeal I.A.no.1030/2014 seeking waiver of condition of predeposit under Section 21 of Recovery of Debts Dues to Banks and Financial Institutions Act, 1993 (for short ' RDB Act '), was filed. But, DRAT directed deposit of Rs.61.50 Crores.

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Objector no.1 challenged said order in

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W.P.no.56387/2014 before this Court, which was dismissed on 09.06.2015. Further challenge before Hon'ble Supreme Court in SLP.no.20940/2015 was also dismissed on 31.07.2015, by extending time for deposit by eight weeks. But, there was no compliance of said order. Thereafter on 06.10.2015, respondent no.8 herein (' Objector no.2, ' for short) filed application under Section 22(2)(h) of RDB Act before respondent no.9 for impleading in recovery proceedings. It claimed to be mortgagee of schedule property from objector no.1.

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Application was opposed by filing objections on 28.10.2015 pointing out that finding about Smt.Sushila as well as objector no.1 purchaser, lacking title over schedule property and entitlement of petitioner to recover dues by proceeding against schedule property had attained finality.

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By order dated 03.05.2016, application for impleading filed by objector no.2 was allowed. Thereafter, on 31.01.2017 respondent no.9 passed impugned order contrary to earlier finding by DRT and DRAT, this Court as well as Hon'ble Supreme Court, on ground that order of injunction

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granted by DRT on 18.06.1999 was not served on certificate debtor - respondent no.4 and therefore, order of injunction had become redundant and consequently order of attachment of schedule property was recalled.

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Petitioner challenged said order before DRT in SR.no.2374/2017. Said petition was disposed of on 31.01.2018, reserving liberty to petitioner to pursue its legal remedies in accordance with law. It was submitted that in terms of said liberty, present petition was filed.

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Learned Senior Counsel submitted that though schedule property was not mortgaged property, it was identified property and DRT on 18.06.1999 had passed order of injunction restraining respondents no.1 to 6 from transferring, alienating or otherwise dealing with or disposing schedule properties in OA. It was submitted that as on 08.11.1999, respondents no.1 and 2 were served with notice and had entered appearance. Therefore, they were fully aware of interim injunction granted by DRT. Respondents no.3 to 6 belong to same family as respondent no.2 and directors of respondent no.1-company. Further, in gift deed executed by respondent no.4 in favour of his wife Smt.Sushila on 15.09.2000, respondent no.2 signed as a witness. Moreover,

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respondents no.2 to 4 were brothers. Therefore, they would be deemed aware of order of injunction and gift deed would be collusive and in violation of order of injunction. It was further submitted that schedule property was also ordered to be attached on 07.09.2001. In view of above, objector no.1 could not claimed to be bonafide purchaser of schedule property from Smt.Sushila under sale deed dated 19.04.2002.

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In fact, objector no.1 filed claim petition twice before respondent no.9. First claim petition was rejected on 24.08.2005. Appeal against same in AOR no.16/2005 filed before DRT was dismissed on 05.02.2008. There was no further challenge and order attained finality.

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Second claim petition filed under Rule 11(1)

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Schedule - II of I.T. Act was rejected on 04.07.2013. Appeal filed against same before DRT in AOR no.9/2013 was dismissed on 18.08.2014. Further appeal before DRAT came to be dismissed on 17.11.2014 due to non-compliance of condition regarding pre-deposit. Challenge of said order in W.P.no.56387/2014 met with dismissal on 08.12.2014 and confirmed by Hon'ble Supreme Court on 31.07.2015.

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Thereafter, objector no.2 sought to raise same contentions by filing impleading application and objections. It was submitted that objector no.2 was claiming to be mortgagee of schedule property by objector no.1 by depositing title deeds against credit dues. Since objector no.2 was mere mortgagee, it cannot claim any higher right over schedule property than its vendor. It was submitted that while passing impugned order, respondent no.9 observed that petitioner had failed to serve order of injunction on owner of schedule property namely, respondent no.4 – Sri Devindar Kumar Chugh would be uncharitable, since respondents no.1 and 2 had entered appearance as early as on 08.11.1999. Sri Devindar was brother of respondent no.2, who had already entered appearance. Fact that respondent no.2 was witness to gift deed executed by Sri Devindar to his wife Smt.Sushila on 15.09.2000. Subsequently, Smt. Sushila sold schedule property in favour of objector no.1 on 19.04.2002. Hence, observation of respondent no.9 would be contrary to record and law. No other reason is mentioned for allowing objector's application. Therefore, same called for interference.

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Learned Senior Counsel further submitted that

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Section 30 of RDB Act, provides preferring of appeal to DRT

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within 30 days and petitioner had in fact, filed such appeal. However, same was disposed of with liberty to petitioner to avail other remedy.

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It was submitted that as order of respondent no.9 was contrary to settled legal principles and law declared by Hon'ble Supreme Court in Surjit Singh & Ors. Vs. Harbans Singh & Ors.¹ , that in case of sale in violation of order of injunction, Courts would be under duty to treat such alienation/assignment as having not taken place at all. Further in Mohammed Niyas Vs. Commissioner of Income Tax in

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W.P(C).no.876/2018 , High Court of Kerala, held that alienation during subsistence of order of attachment would be void. Further Division Bench of this Court in B.H. Veeresha Vs. Government of Karnataka and Others² , had explained principles of constructive res judicata . In view of above fact that impugned order was opposed to settled legal principles, invocation of jurisdiction under Art.226 of Constitution of India, 1950 (‘ CoI ’ for short) would be valid and necessary, as held in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai³ . Reliance was also placed on ratio in Keshrimal Jivji

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1 1995 (6) SCC 850

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2 ILR 2006 Kar.610

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3 1998 (8) SCC 1

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Shah & Anr. Vs. State of Maharastra⁴ , wherein it was held that transfer of immovable property in violation of order of injunction is no transfer and confers no right, title or interest in transferee. Relying upon decision in case of Rai Bareli Kshetriya Grameena Bank Vs. Bhola Nath Singh & Ors .⁵ it was submitted that jurisdiction of High Court under Art.226 of Constitution of India was limited to rectification of errors of law and procedure.

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It was submitted that in view of above factual and legal position, allowing of objections of objector no.2 by respondent no.9 was contrary to law and wholly illegal calling for interference.

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On other hand, Sri. Gurumurthy M., learned counsel for objector no.1 at outset submitted that writ petition was not maintainable as impugned order was appealable under Section 30 of RDB Act before DRT. It was submitted that admittedly, petitioner had invoked such remedy, but, abandoned same albeit by reserving liberty to file suit or such other remedy. Further, as per Annexure - S, appeal filed by petitioner was barred by time with no provision for condonation. Therefore,

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4 2004 (3) Mh.L.J. 893.

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5 1997 (3) SCC 657 .

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when remedy under statute was time barred, petitioner cannot reinvent same by invoking Art.226 of CoI. Reliance was placed upon decision of High Court of Kerala in Panopharm Vs. Union of India⁶ .

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It was further submitted that schedule property was purchased by objector no.1 after due diligence. Only in year 2005, it became aware of proceedings before DRT. Thereafter it filed application/objection before respondent no.9. However, at that time, they had no occasion to examine entire records. Therefore, respondent no.9 as well as DRT, DRAT, this Court and Hon'ble Supreme Court proceeded on premise that order of injunction was served on vendors of objector no.1. However, from order-sheet produced as document no.6 along with statement of objections of objector no.2 would reveal that respondents no.3 to 5 including respondent no.4 - original owner of schedule property were not served with notice and order of injunction. It was submitted that in objection no.2, a specific contention about non-service of notice and order of injunction was urged. Since respondent no.9 had passed orders, considering this aspect, same did not call for interference.

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6 2010 SCC OnLine Ker.390

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Sri. Abhinav R., learned counsel for objector no.2 submitted that it was settled law that for an order of injunction to be binding, it has to be established that order was communicated. Since, respondent no.9 after reference to records found that order of injunction was not served on Sri. Devindar Kumar, it was held that order of injunction would not affect either gift deed in favour of Smt. Sushila or sale deed in favour of objector no.1.

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It was further submitted that as per Section 29 of RDB Act, provisions of II and III schedule to IT Act, and Income Tax (Certificate Proceedings) Rules 1962, (' IT Rules ’ for short) with necessary modifications applied to amount of debt due under Act. Therefore, order at Annexure-T impugned herein would be appealable under Section 30 of RDB Act. It was submitted that petitioner had in fact filed appeal as indicated in Annexure-S and final order in said appeal was passed on 31.01.2018. Both under Rule 11 of IT Rules as well as Section 30(2) of RDB Act, which provided for inquiry appellate remedy would be comprehensive. But, as appeal was filed beyond period of limitation, in absence of power to condone delay, it would be time barred.

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Relying upon decisions of Hon'ble Supreme Court in Deep Industries Ltd., Vs. ONGCL & Anr.⁷ , it was submitted that when appellate remedy was available, writ petition ought not to be entertained. It was submitted that in view of decision in International Asset Reconstruction Company of India Ltd., Vs. Official Liquidator of Aldritch Pharmaceuticals Ltd., & Ors .⁸ , appellate tribunal had no power to condone delay beyond 45 days.

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In support of submission against invocation of writ jurisdiction when alternative remedy of appeal was available, reliance was placed on decision in Asst. Commissioner (CT)

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LTU Kakinada & Ors. Vs. Glaxo Smith Kline Consumer

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Health Care Ltd.⁹ . Further, for proposition that transfer pendent-lite was neither illegal nor void ab initio and rights of transferee would only remain sub-servient to rights eventually determined by Court in pending litigation, reliance was placed on decision in Thomson Press (India) Ltd., Vs. Nanak Builders & Investors Pvt. Ltd., and & Ors .¹⁰ .

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For proposition that for failure to sell immovable property within three years from date on which demand had

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7 2020 (15) SCC 706.

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8 2017 (16) SCC 137.

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9 AIR 2020 SC 2819.

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10 2013 (5) SCC 397.

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become conclusive, attachment of property would lapse, reliance was placed on decision of High Court of Bombay in

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Sapna Charudutt Ranadive Vs. Assistant Commr. of Income Tax and Ors .¹¹ ,and of this Court in K Venkatesh Dutt Vs. Tax Recovery Officer¹² , and High Court of Madras in Noorudin Vs. Tax Recovery Officer¹³ .

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It was further submitted that Hon’ble Supreme Court in Tax Recovery Officer Vs. Gangadhar Vishwanath

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Ranade¹⁴ had held that Tax Recovery Officer under Rule 11 of IT Rules is not empowered to decide intricate questions of title. And where claim of transferee was allowed, attaching creditor was required to sue on behalf of himself and all other creditors under Section 53 of Transfer of Property Act, for declaration that transfer was void.

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It was submitted that this Court in D.L.Sridhar Vs. C.R.Chandramohan¹⁵ , while considering question whether attachment prevails over sale deed of objector who claimed to bonafide purchaser for value had held that alienation made

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prior to order of attachment would prevail.

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11 2013 (5) SCC 397.

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12 2016 SCC OnLine Kar. 8206.

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13 2001 SCC OnLine Mad. 1173.

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14 1998 (6) SCC 658,

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15 ILR 2008 Kar. 591.

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In view of above legal position, writ petition in any

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case was either untenable or not maintainable and was liable to be dismissed.

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Heard learned counsel and perused writ petition records.

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From above submission, there is no dispute about predecessor in title namely State Bank of Travancore had filed OA.no.521/1999 against respondents no.1 to 6 herein for recovery of Rs.30,81,09,931/-. It was allowed by DRT on 03.09.2001 and thereafter on 28.03.2002, Recovery Certificate bearing DCP.no.1709 was issued. It is also not in dispute that for recovery of said amount, proceedings were initiated before respondent no.9. There is also no dispute about objector no.1 filing objections against recovery for first time on 07.04.2005 and second time on 05.11.2012. It is also not in dispute that they were dismissed on 24.08.2005 and 04.07.2013 respectively and both of which have attained finality. Thereafter, objector no.2 filed application claiming to be mortgagees of schedule property. Though petitioner filed objections against said application on ground that alienation of schedule property by its original owner Devinder Kumar –

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Respondent no.4 by way of gift in favour of his wife Smt.Sushila on 15.09.2000 and subsequent sale of schedule property by Smt.Sushila in favour of objector no.1 on 19.04.2002 were held to be illegal and not binding on petitioner – Certificate holder, in applications/objections filed by objector no.1. Orders of rejection of said applications, by respondent no.9 had attained finality. Objector no.1 however claims to be bonafide purchaser for value and also contends that on account of non-intimation of order of interim injunction granted on 18.06.1999, upon Devinder Kumar prior to execution of gift deed by him in favour of his wife Smt.Sushila and subsequent sale deed executed by her in favour of objector no.1 would be saved. Consequently, even claim of objector no.2 over schedule property as mortgagee from objector no.1 would also be saved.

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While petitioner contends that there was constructive communication of order of injunction granted by DRT on 18.06.1999 thereby binding even on original respondent no.4 and in view of rejection of claims/objections objector no.1 having attained finality, order of respondent no.9 in re-examining basis for order of rejection while passing impugned order would be unsustainable and seeks interference; objector no.2 contends that after passage of order

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under Section 29 of RDB Act, especially on question of title over immovable property appropriate remedy would be comprehensive suit for declaration of title. Alternatively, it is contended that petitioner having invoked remedy of appeal and after giving up same could not claim any higher relief by invoking jurisdiction under Article 226 of Constitution of India.

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Therefore, questions that would arise for

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consideration are:

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i) Whether present writ petition would be maintainable?

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ii) Whether impugned order is liable for interference on ground of constructive res judicata ?

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iii) Whether order of injunction binds without communication?

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Hon’ble Supreme Court in Deep Industries’ case (supra) has considered scope of interference with an interlocutory order under Article 227 of Constitution of India in absence of provision for revision. It was held that both inherent jurisdiction under Article 226 of Constitution of India as well as revision petition under Section 115 of CPC, could be invoked against final order and not against interlocutory order. Since present writ petition is not against interlocutory order, but

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against an order determining rights finally, present case would be distinguishable on facts.

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Hon’ble Supreme Court in Glaxo Smith Kline’s case (supra), has held that when statutory remedy against an order stood foreclosed, high Court in exercise of writ jurisdiction cannot entertain a challenge to assessment order on sole ground that statutory remedy stood foreclosed. In instant case, DRT while disposing appeal filed by petitioner herein against impugned order has specifically reserved liberty to avail such other remedy. Further, challenge in present writ petition is not on sole ground that statutory remedy stood foreclosed but, on ground that respondent no.9 while passing impugned order had ignored several fundamental legal principles. In view of above, there would be no restriction on jurisdiction of this Court.

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Hon’ble Supreme Court in Thomson Press 's

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(supra), after referring to previous decisions on Section 52 of Transfer of Property Act, has held that pendente lite transfer was neither illegal nor void ab initio but would remain subservient to rights eventually determined by Court in pending litigation. It was held that transfer in disregard of injunction

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would render party liable for committing breach, but, sale would remain valid between parties to sale deed subject to any direction that may be issued by Competent Court. Ratio in Surjit Singh’s case (supra) and Mohammed Niyas’s case (supra), does not run counter to above principle, but clarificatory in nature, holding that Court in seisin of a lis would be entitled to presume that particular state of affairs exists till it orders otherwise, and would be under duty to ensure such state by treating any alienation/assignment as not having taken place at all for its purposes. Ratio in Keshrimal Jivji Shah 's case ( supra) is likewise.

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Hon'ble Supreme Court in Aldritch

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Pharmaceuticals’ case ( supra ), it has held that DRT was not a Court and power to condone delay by applying Section 5 of Limitation Act in respect of an appeal filed under Section 30 of RDB Act, would not be available to it. Since subject matter of this writ petition is not about legality of order of DRT either condoning or refusing to condone delay in preferring appeal under Section 30 of RDB Act, said ratio would not come in way of this Court examining validity of order passed by respondent no.9. Indeed, Division Bench of High Court of Kerala in Panopharam and Narayaneeyam’s case (supra) , held that

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where person who had remedy by way of appeal provided under statute had invoked extraordinary jurisdiction of High Court, after expiry of period of limitation for filing appeal, it was held that if there was no extraordinary situation for invoking writ jurisdiction, then party whose right was barred under statute cannot resurrect said right by filing writ petition. In view of fact that petitioner has obtained liberty from DRT at time of disposal of appeal and thereafter filed this writ petition on ground that respondent no.9 had ignored/violated settled legal principle of res judicata, hands of this Court would not be tied from examining contentions of petitioner on merits.

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In Sapna Charudutt Ranadive, ,

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K. Venkatesh Dutt and also Noorudin cases ( supra) High Courts of Bombay, Karnataka and Madras respectively clarified that, attachment for purposes of recovery of income tax dues, would be valid only for period of three years from date of conclusive determination. Admittedly, recovery in instant case is not arrears of tax dues. Therefore, ratio would not apply.

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Hon'ble Supreme Court in Whirlpool

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Corporation’s case (supra) , it is held that power of High Court to issue writs under Art.226 of Constitution of India is plenary

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and existence of alternative remedy would not be a complete bar.

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Further, Division Bench in B.H.Veeresha’ s case (supra), examining effect of dismissal of earlier writ petition on same set of facts, held that subsequent writ petition for very same relief would be barred, both by doctrine of res judicata and constructive res judicata.

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Hon'ble Supreme Court in Rae Bareli Kshetriya Gramin Bank ’s case (supra) , has held that scope of judicial review under Article 226 of Constitution of India would be limited to rectification of errors of law and procedural errors leading to manifest injustice.

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Therefore, writ petition would be maintainable, regardless of communication of order of injunction, pendente lite transferee would be bound by any order/decree that would be passed against his vendor especially in this case where objector no.2 claims to be mortgagee of schedule property from objector no.1, after claim of objector no.1 was rejected twice by respondent no.9 and rejection was confirmed right upto Hon'ble Supreme Court. Therefore, principle of constructive res judicata would apply to purchaser – pendente lite.

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In view of above discussion, Writ petition is allowed. Consequently, impugned order dated 31.01.2017 bearing DRC.no.1709 arising out of O.A.no.521/1999 passed by Recovery Officer-I, DRT, Bengaluru, at Annexure-T is quashed and respondent no.9 is directed to proceed with recovery proceedings in DRC no.1709 in respect of petition property for recovery as per certificate at Annexure-R, in accordance with law.

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Sd/JUDGE

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psg*

State Bank of India v. M/S. Samrat Ashok Exports Ltd.

Case brief

What is this about?

What did the court decide?

State Bank of India v. M/S. Samrat Ashok Exports Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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