Raj Kumar Chaurasia vs Debt Recovery And 9 Others
2021 Latest Caselaw 7258 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 
							Reserved on 05.07.2021
 
							Delivered on 08.07.2021
 
Case :- WRIT - C No. - 14134 of 2021
 

 
Petitioner :- Raj Kumar Chaurasia
 
Respondent :- Debt Recovery And 9 Others
 
Counsel for Petitioner :- Preet Pal Singh Rathore
 
Counsel for Respondent :- C.S.C., Anadi Krishna Narayana, Krishna Mohan Asthana
 

 
Hon'ble Manoj Misra,J.

Hon'ble Dinesh Pathak,J.

(Delivered by Manoj Misra, J.)

1. The petitioner has sought quashing of the order dated 30.10.2018 passed by the District Magistrate, Prayagraj under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act). The petitioner has also challenged the auction sale notice dated 22.05.2019 and the consequential auction sale as well as sale certificate dated 19.06.2019.

2. Facts that could be elicited from the petition are that father of the petitioner had dealership from Indian Oil Corporation by the name and style of M/s Prince Automobile. The firm through petitioner's father took a loan of Rs.1.25 crores from Bank of Baroda (for short the Bank). Borrower was the father of the petitioner and the petitioner including other family members were guarantor. House no.74 & 75 at Tularam Bagh, George Town, Prayagraj were mortgaged. Interestingly, in paragraph 5, it is stated that house nos.74, 75 and 76 were all mortgaged, whereas in paragraph 17 it is stated that house no.76 was not mortgaged. What is relevant is that from the averments made in paragraph 5 it appears that sale deed of all the three houses were with the Bank. In paragraph 19 it is stated that the petitioner was unaware of the loan transaction and that he did not sign any document. But in later paragraphs it is stated that the petitioner came to know about the loan and the mortgage in the year 2015 and after coming to know about the loan he made complaint to the Bank officials. In paragraph no.29 it is stated that the Bank officials acting on the complaint made an enquiry and informed the petitioner through letter dated 19.12.2015 that documents are in order. It is stated that father of the petitioner fell sick in the month of October 2016 and, therefore, he defaulted in making payment of instalments. Later, he died on 22.1.2017. It is stated that the Bank issued notice to his father but upon discovering that he is dead proceedings were dropped. Subsequently, Bank applied under Section 14 of the SARFAESI Act, which was allowed ex parte on 30.10.2018. It is stated that without serving a notice, public auction notice was published in newspaper on 22.5.2019. It is stated that, upon coming to know of the proposed auction, the petitioner instituted suit no.223 of 2019, which remains pending. It is stated that the Bank has challenged the maintainability of the suit therefore, the petitioner undertakes to withdraw the same. It is stated that E-Auction was held and a sale certificate was issued on 19.06.2019. It is also stated that one of the guarantors, namely, Anita Chaurasia, that is, Bhabhi (sister in law) of the petitioner, filed Securitisation Application 418 of 2019, which was decided in favour of the Bank against which Appeal No.16 of 2020 was filed which was dismissed on 8.1.2021. After narrating the aforesaid facts, by claiming that the petitioner has not been impleaded in Securitisation Application No.418 of 2019 and that the proceedings under the SARFAESI Act were carried out behind petitioner's back and in derogation of the provisions of the SARFAESI Act and the Rules framed thereunder, petition has been filed.

3. A preliminary objection has been raised by learned counsel for the respondents 2 and 3, with the regard to the maintainability of the petition on the ground that the petitioner had been well aware of the measures taken under Section 13(4) of the SARFAESI Act since the year 2019 which is borne out from the fact that he instituted a suit, and one of the guarantors filed application under section 17 of the SARFAESI Act which was dismissed, therefore, in view of availability of alternative remedy under Section 17 of the SARFAESI Act, at such belated stage, the petitioner should not be permitted to invoke the writ jurisdiction of this court.

4. We have heard Sri Preet Pal Singh Rathore; Sri Avanish Jaiswal for the respondents 2 and 3; learned Standing Counsel for the respondent no.4; Sri Susheel Kumar Mishra for the respondent no.10; and Sri Aneul Haq holding brief of Sri Mohd. Naeem Siddqui for the respondent no.5 on the preliminary objection.

5. There is no dispute that the petitioner has a statutory alternative remedy under Section 17 of the SARFAESI Act. The learned counsel for the petitioner, however, submits that alternative remedy is not an absolute bar on the High Court in entertaining a petition under Article 226 of the Constitution of India. In support of his submission, he cited the following decisions:

(i) J.M. Baxi & Co., Gujarat Vs. Commissioner of Customs, New Kandla and another: (2001) 9 SCC 275 wherein the Apex Court in the facts of that case, upon finding that the alternative remedy was onerous, involving deposit of huge amount, and demand itself barred by limitation, held, interference by High Court on merits was necessary despite alternative remedy being available.

(ii) Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others: AIR 1999 SC 22 wherein the Apex Court took the view that in spite of the alternative statutory remedies, the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution of India is not ousted. It was held that in matters where the order impugned is without jurisdiction or ex facie illegal; or is passed without opportunity of hearing; or where the vires of the provisions are challenged, a petitioner may not be relegated to the alternative remedy.

(iii) Smt. Aradhana Seth and another Vs. Presiding Officer, Debt Recovery Tribunal, Allahabad and others: 2009 (1) AWC 740. This judgment is of a Single Judge Bench wherein, in the facts of the case, despite there being an alternative remedy of an appeal against the order of the Debts Recovery Tribunal, the Court entertained the writ petition upon finding that the order passed by the Debts Recovery Tribunal was ex facie unsustainable.

(iv) Pushpendra Singh and another Vs. State of U.P. and another: 2008 (2) AWC 1572 in which a Division Bench of this Court had observed that on mere existence of alternative remedy a writ petition cannot be thrown out particularly when there is blatant error of law. In that case the matter arose out of proceedings under U.P. Police Officers of Subordinate Ranks (Punishment of Appeal) Rules, 1991.

(v) Avtar Singh Chhabra Vs. State of U.P. and others: 2006 (4) ADJ 463 (All) (DB) wherein same principle has been reiterated that the existence of alternative remedy does not oust the jurisdiction under Article 226 of the Constitution of India and where impugned order has been passed in violation of principles of nature justice or is ultra vires to the Constitution or any Statutory provision of law or is without jurisdiction, the Court may entertain the petition directly.

(vi) Gulbir Singh Vs. State of U.P. and others: 2008 (9) ADJ 399. This was decided by a Single Judge Bench reiterating the general principle that existence of alternative remedy is not an absolute bar in exercise of power by the High Court under Article 226 of the Constitution of India. This matter also emanated from disciplinary proceedings.

(vii) State of Himachal Pradesh Vs. Raja Mahendra Pal and others: AIR 1999 SC 1786. In this decision also it has been held that existence of an alternative remedy does not debar the High Court from granting appropriate relief, if the facts so justify.

6. Per Contra, the learned counsel for the respondent bank submitted that the proceedings under SARFAESI Act are not ex facie illegal and there exists a seal of approval of the DRT and the DRAT accorded while dismissing application of the co-guarantor which fact is admitted to the petitioner in his petition. Other than that, the petitioner was well aware of the proceedings and had instituted a suit, just to avoid the regular statutory forum. Under these circumstances, the discretionary jurisdiction under Article 226 of the Constitution of India should not be exercised. He placed reliance on several decisions of the Apex Court, namely, ICICI Bank Limited and others Vs. Umakanta Mohapatra and others: (2019) 13 SCC 497; Kanaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782; and United Bank of India Vs. Satyawati Tondon and others (2010) 8 SCC 110, wherein, consistently, the Apex Court has held that where measures are taken under Section 13(4) of the SARFAESI Act, the person aggrieved can have recourse to the provisions of Section 17 of the SARFAESI Act and that a writ petition should not ordinarily be entertained.

7. Having heard the learned counsel for the parties and having perused the record as well as the decisions cited by the learned counsel for the parties, we are of the view that though existence of an alternative remedy is not an absolute bar in exercise of writ jurisdiction but where a statutory remedy is available, except in cases where proceeding or order impugned is without jurisdiction or ex facie illegal or is in violation of the principles of natural justice or where vires of statutory provisions are under challenge, the High Court should not ordinarily entertain a writ petition more so where a factual controversy is raised. Here, not only there exists an alternative remedy but it appears to the court that the petitioner has raised a factual controversy with regard to absence of his signatures on guarantee documents, etc. Further, it appears to us that he is not approaching the court with clean hand as we find from his petition that the petitioner was well aware of the loan and the mortgage since the year 2015; he also instituted a suit in 2019, which is pending; and he awaited rejection of his relative's (i.e. co-guarantor - Anita Chaurasia) application by the DRT. Under these circumstances, entertaining the writ petition of the petitioner, when the petitioner could have easily taken recourse to the alternative statutory remedy, keeping in mind the decisions of the Apex Court cited by the learned counsel for the Bank, in our view, would not be appropriate.

8. The writ petition is therefore dismissed without prejudice to the right of the petitioner to avail alternative statutory remedy or such other remedy as he may be advised.

9. It is made clear that any observation made by us in our order is for the purposes of drawing satisfaction whether to entertain this petition or not and it should not be taken as a finding or an opinion returned or expressed by us on the merits of the petitioner's claim.

Order Date :- 8.7.2021

AKShukla/-