HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND HON'BLE DR. JUSTICE SHAMEEM AKTHER Writ Petition No.3344 of 2021 ORDER: (Per Hon'ble Sri Justice A.Rajasheker Reddy) This Writ Petition is filed against orders dated 17.01.2020 passed by the Debts Recovery Tribunal (for short, 'Tribunal') in I.A.No.3682 of 2020 in S.A.No.1187 of 2017, wherein and whereby the Tribunal allowed the application filed by the petitioner for producing documentary evidence while dismissing the petition for adducing oral evidence.
Heard Sri Rakesh Sanghi, learned counsel for the petitioner, who submits that when fraud is alleged and the criminal case is registered against the principal borrower by the CBI, then it is for the guarantor to lead the oral evidence also to prove the same. But the DRT has not considered the said aspect in proper perspective and allowed the application only in part to the extent of documentary evidence. He also complains that the Tribunal has not followed the judgments of Hon'ble Supreme Court. In support of his contention, he relied on the judgments reported in Syed Shah Ghulam Ghouse MOhiuddin Khamesul Quadri v. Syed Shah Abdul Har Khamisul Quadri [AIR 1959 AP 212], Whirlpool Corporation v. Registrar of Trade Marks [AIR 1999 SC 22] and Ayyaubkhan Noorkhan Pathan v. State of Maharashtra [AIR 2013 SC 58]. He also submits that since the matter involves Rs.200.00 Crores, the writ petition should be entertained.
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In this case, it is to be seen that the learned counsel for the petitioner does not dispute that he has efficacious alternate remedy under Section 18 of the SARFAESI Act, 2002. However, he states that availability of alternate remedy is no bar and that was not come in the way of this Court for exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. No doubt, we are not on the opinion that this writ petition is not maintainable, but the question why we should entertain when efficacious alternate remedy is available to the petitioner under law before the Tribunal under Section 18 of the Act. More so, the Tribunal is headed by a retired High Court Judge. Learned counsel for the petitioner contends that since the matter involves Rs.200.00 Crores, this Court should entertain the writ petition, we afraid, on that ground, we cannot entertain the writ petition.
No doubt, in Whirlpool Corporation v. Registrar of Trade Marks (supra), the Hon'ble Apex Court held that when there is a violation of principles of natural justice, when the impugned order is without jurisdiction and when the order is patently illegal, the writ petition can be entertained. But a perusal of the impugned order, we feel that it is not a fit case where we should exercise extraordinary discretionary jurisdiction under Article 226 of the Constitution of India bypassing the alternate remedy under Section 18 of the Act of 2002. No extraordinary circumstances are brought to the notice of this Court in entertaining the writ petition bypassing alternate remedy.
In view of availability of alternate remedy and since we are relegating the party to alternate remedy, we are not inclined 3 to go into the merits of the case. The petitioner can raise all the pleas before the Appellate Tribunal, which are raised herein and it is for the Tribunal to consider the same. Even after disposal of the Appeal before the Appellate Tribunal, the petitioner is not remediless as he can challenge the said orders, if he is so aggrieved.
In view of above facts and circumstances, this Writ Petition is disposed of granting liberty to the petitioner to avail alternate remedy under Section 18 of the Act of 2002.
There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.
__________________________ A.RAJASHEKER REDDY, J __________________________ DR.SHAMEEM AKTHER, J Date:09.06.2021 kvs/tk