M/S Super Hospitality Private ... vs Dena Bank (Now Bank Of Baroda)

    C/SCA/3334/2023                               ORDER DATED: 24/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 3334 of 2023

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                M/S SUPER HOSPITALITY PRIVATE LIMITED
                               Versus
                  DENA BANK (NOW BANK OF BARODA)
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Appearance:
MR HIMANSHU C DESAI(6832) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                            Date : 24/02/2023

                             ORAL ORDER

1. Heard learned advocate Mr.Himanshu C. Desai for the petitioners. Learned advocate Mr.S.P.Majmudar prays for filing appearance for respondent no.2 on advance copy. Permission is granted.

2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following:-

"(a) YOUR LORDSHIPS may be pleased to pass necessary orders for quashing and setting aside the order dated 21.02.2023 passed in S A 36/2019 by Hon Debts Recovery Tribunal II at Ahmedabad and oblige.

(b) YOUR LORDSHIPS may be pleased to extend the status quo orders in respect of the property of the applicants vide order dated 06.05.2022 in S A 36/2019 by Hon Debts Page 1 of 5 Downloaded on : Fri Feb 24 21:00:36 IST 2023 C/SCA/3334/2023 ORDER DATED: 24/02/2023 Recovery Tribunal II Ahmedabad till the disposal of the S A 36/2019 and oblige.

(c) YOUR LORDSHIPS may be pleased to stay execution of the order dated 21.02.2023 passed in S A 36/2019 by Hon Debts Recovery Tribunal Ii at Ahmedabad till the final disposal of this application and oblige.

(d) YOUR LORDSHIPS may be pleased to pass any other and further necessary, just and proper orders which Your Lordship may deem fit in light of the facts and circumstances of the case and oblige."

3. Learned advocate Mr.Himanshu C. Desai for the petitioner submitted that though the petitioner has alternative efficacious remedy under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'Sarfaesi Act') to challenge the impugned order dated 21.02.2023 passed by the Debt Recovery Tribunal-II, Ahmedabad before the Debt Recovery Appellate Tribunal, the petitioner has approached to this Court while invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India because the Debt Recovery Appellate Tribunal is not available up to 26th February, 2023. It was submitted that the Debt Recovery Tribunal granted interim relief of maintaining status quo with regard to the property which is auctioned by the order dated 06.05.2022, which now stands vacated by the Page 2 of 5 Downloaded on : Fri Feb 24 21:00:36 IST 2023 C/SCA/3334/2023 ORDER DATED: 24/02/2023 order dated 21.02.2023 and the petitioner is ready and willing to argue before the Tribunal finally pending the Secularization Application 36 of 2019 at the earliest.

4. Be that as it may, the Hon'ble Supreme Court in case of Varimadugu Obi Reddy Vs. B. Sreenivasulu And Others reported in (2023) 2 SCC 168 has again reiterated that when there is alternative efficacious remedy, this Court should not exercise the jurisdiction under Article 226 of the Constitution. The relevant paragraphs are as under:-

"34. The order of the Tribunal dated 1-8- 2019 was an appealable order under Section 18 of the SARFAESI Act, 2002 and in the ordinary course of business, the borrowers/person aggrieved was supposed to avail the statutory remedy of appeal which the law provides under Section 18 of the SARFAESI Act, 2002 in the absence of efficacious alternative remedy being availed, there was no reasonable justification tendered by the respondent borrowers in approaching the High Court and filing writ application assailing order of the Tribunal dated 1-8-2019 under its jurisdiction under Article 226 of the Constitution without exhausting the statutory right of appeal available at its command.

35. This Court in the judgment in United Bank of India vs. Satyawati Tondon & Others, was concerned with the argument of Page 3 of 5 Downloaded on : Fri Feb 24 21:00:36 IST 2023 C/SCA/3334/2023 ORDER DATED: 24/02/2023 alternative remedy provided under the SARFAESI Act, 2002 and dealing with the argument of alternative remedy, this Court had observed that where an effective remedy is available to an aggrieved 2(2010) 8 SCC 110 person, the High Court ordinarily must insist that before availing the remedy under Article 226 of the Constitution, the alternative remedy available under the relevant statute must be exhausted. Paras 43, 44 and 45 of the said judgment are relevant for the purpose and are extracted below: (SCC P.123) "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 quasi-judicial 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.

C/SCA/3334/2023 ORDER DATED: 24/02/2023

36. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self- imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution."

5. In view of the above dictum of the law as pronounced by the Hon'ble Supreme Court which was reiterated time and again since the decision of Apex Court in case of United Bank of India Vs. Satyawati Tondon & Others, this Court is not inclined to entertain this petition, more particularly when the Debt Recovery Appellate Tribunal is available from 27th February, 2023 and the petitioner can approach the Debt Recovery Appellate Tribunal for redressal of the grievance.

6. In view of the foregoing reasons, the petition is dismissed.

(BHARGAV D. KARIA, J) URIL RANA Page 5 of 5 Downloaded on : Fri Feb 24 21:00:36 IST 2023