Dismissed

Sudhir Kumar Mishra S/O Shri Onkar Nath Mishra v. State Bank of India

Rajasthan HC6 Feb 2020CW/724/2020

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a writ petition challenging a bank's auction proceedings. The court held that since the petitioner failed to deposit 50% of the loan amount as directed and had an alternative statutory remedy under the SARFAESI Act, the extraordinary writ jurisdiction under Article 226 would not be exercised.

What did the court decide?

The writ petition was dismissed with no order passed in favour of the petitioner.

Sudhir Kumar Mishra S/O Shri Onkar Nath Mishra Vs… — Banking and Recovery | Rajasthan HC (2020)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 724/2020

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Sudhir Kumar Mishra S/o Shri Onkar Nath Mishra, Aged About 55 Years, Resident Of Plot No. C-32A, Roop Vihar, Near Vivek Vihar Metro Station, New Sanganer Road, Sodala, Jaipur Also At Flat No. 805, Balaji Tower, Road No.1, Near Manipal Hospital, Vidhyadhar Nagar, Jaipur (Raj.)

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----Petitioner

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Versus

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State Bank Of India, Branch Hatwata, Jaipur, Rajasthan Through Branch Manager

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State Bank Of India Stressed Assets Recovery Branch, Matrix Mall Sector-4, Jawahar Nagar, Jaipur Through Chief Manager

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----Respondents

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For Petitioner(s) : Mr. Kuldeep Aswal For Respondent(s) : Mr. Kailash Chand Darji Ms. Rekha Jain

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HON'BLE MR. JUSTICE INDERJEET SINGH

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Order

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06/02/2020

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This writ petition has been filed by the petitioner with the

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following prayers:-

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“(i) by appropriate writ, order or direction the respondents be directed to set aside the order dated 22.08.2019; and

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(ii) by appropriate writ, order or direction the respondents be directed to cancel the E-Auction dated 16.01.2020; and

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(iii) by appropriate writ, order or direction the respondents be directed to take the loan amount in E.M.I.; and

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(iii) Any other order which this Hon’ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner;”

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(2 of 4)

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[CW-724/2020]

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This Court while issuing notice to the respondents on 15.01.2020 passed the following order:-

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“Counsel for the petitioner submits that the respondents are going to auction the residential house of the petitioner. Counsel further submits that the petitioner is ready to deposit 50% of the due loan amount against the petitioner with the respondent-bank within a period of 15 days. In that view of the matter, issue notice to the respondent(s), returnable on 31.01.2020. Meanwhile, online auction proceedings for the residential house of the petitioner V-32A, Roop Vihar, Near Vivek Vihar Metro Station, New Sanganer Rord, Sodala, Jaipur going to be held on 16.01.2020 shall remain stayed, the petitioner undertakes to deposit 50% of the due loan amount to the respondent-bank within a period of 15 days. List on 31.01.2020.”

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Today counsel appearing for the respondent-bank informed that in compliance of the interim order passed by this Court dated 15.01.2020, the petitioner has not deposited 50% of the due loan amount against the petitioner.

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Counsel appearing on behalf of the respondent-bank raised a preliminary objection with regard to maintainability of the writ petition and submitted that the petitioner is having an alternative and efficacious remedy of appeal before the Debts Recovery Tribunal. In support of his contention, counsel relied upon the order passed by the Hon’ble Supreme Court in the matter of Authorized Officer, State Bank of Travancore and anr. Vs. Mathew K.C. reported in (2018) 3 SCC 85, in para No.9 and 10 has held as under:-

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“9. Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank Vs. O.C. Krishnan and others, (2001) 6 SCC 569, that :-

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“6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and

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(3 of 4)

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[CW-724/2020]

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this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.”

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In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding :-

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“43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.

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It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article

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(4 of 4)

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[CW-724/2020]

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226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”

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Admittedly, the petitioner has failed to deposit the 50% of due amount with the respondent-bank as directed by this Court vide order dated 15.01.2020, secondly; the petitioner is having an alternative and efficacious remedy of appeal under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, hence, I am not inclined to exercise the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

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This writ petition is accordingly dismissed.

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(INDERJEET SINGH),J

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Arun/82

Sudhir Kumar Mishra S/O Shri Onkar Nath Mishra v. State Bank of India

Case brief

What is this about?

What did the court decide?

Sudhir Kumar Mishra S/O Shri Onkar Nath Mishra v. State Bank of India

Case brief

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