Sadhana Singh vs Union Of India And 4 Others
2023 Latest Caselaw 23760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:174299-DB
 
Court No. - 40
 

 
Case :- WRIT - C No. - 26330 of 2023
 

 
Petitioner :- Sadhana Singh
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Saurabh Kumar Pandey
 
Counsel for Respondent :- A.S.G.I.,Amrish Sahai,Ramesh Kumar Shukla,Satish Chaturvedi
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Surendra Singh-I,J.

1. Heard Sri Saurabh Kumar Pandey, learned counsel for the petitioner; Sri Amrish Sahai, learned counsel for the respondent no. 3 and Sri Ramesh Kumar Shukla, learned counsel for the respondent no. 4.

2. The present petition is preferred for a direction commanding the respondent nos. 2 to 4 to lift seizure over accounts of the petitioner bearing account no. 760310110000318 Bank of India, Fatehgarh and also lift seizure of another service account of petitioner being account no. 31792635450 of State Bank of India, Branch Badri Vishal Degree College, Farrukhabad within stipulated period as fixed by this Court. Further prayer has been made for commanding the respondent no. 2 to decide the application dated 20.06.2023 filed by the petitioner which is pending before him within stipulated period as fixed by this Court.

3. This much is averred in the writ petition that the petitioner is a Government Employee. The petitioner along with her husband namely Alok Kumar (respondent no.5) have jointly purchased a residential plot situated at Plot No.647, Area 1449 sq. ft. situated in Village Dharu Ramleela Maidan, Tehsil Sadar, Distt. Mainpuri. The respondent no.5 had taken a loan from respondent no.2 (Aryavart Gramin Bank) and mortgaged the sale deed of the aforesaid property in the respondent bank. After some time due to misunderstanding the divorce had taken place between petitioner and respondent no.5 vide judgment and decree dated 25.2.2021. After the divorce now the petitioner is residing with her two children in her parental house. It is alleged that after this incident, the respondent no.5 had illegally sold the house in question through registered sale deed in favour of Yogendra Prakash S/o Ganga Singh. When the petitioner came to know about the aforesaid facts, she had given a letter dated 8.4.2022 to the concerned banks stating that the petitioner is not able to repay the loan individually and she requested to recover the loan by making an auction of the property in question. After knowing this fact, the respondent no.4 on the instruction of respondent no.2 had illegally frozen the Account No.760310110000318 situated in Bank of India, Branch Fatehgarh without any information. Being aggrieved with the aforesaid action, the petitioner gave application dated 20.6.2023 before respondent nos.2 and 4. It is contended that the petitioner had purchased the property jointly through registered sale deed dated 30.09.2014 while the respondent no.5 had sold the disputed property solely by registered sale deed dated 15.3.2021. It is alleged that instead of paying heed on the petitioner's grievance, the respondent no.2 had instructed to respondent no.3 to hold/ seize the account no. 31792635450 of the petitioner in State Bank of India, Branch Badri Vishal Degree College, Farrukhabad. It is contended that the petitioner herself had requested the bank to recover the due after following due process of law but seizure of the saving account of the petitioner is not justified as due to seizure she is not able to withdraw her salary causing serious hardships to her. The education of her children is also badly affected. As such it is submitted that this Court may come for rescue and reprieve of the petitioner.

4. Vide order dated 09.08.2023, learned counsel for the respondents was directed to seek instructions in the matter. In response thereof, Shri Ramesh Kumar Shukla, learned counsel for Aryavart Bank has placed the instructions dated 18.8.2023 sent by the Regional manager, Aryavart Bank, Kannauj, which is taken on record. On the basis of instructions, he has raised objection regarding maintainability of the writ petition on the ground that proceeding is already initiated in the matter under Section 13 (2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (in short "SARFAESI Act"). Notices were also served upon borrower and guarantor on 5.8.2022. Once the bank had received the information regarding property being sold to some other person, the bank had issued legal notices to both borrowers and purchasers. He submits that the respondent bank has every right to use available tools under the SARFAESI Act to recover the dues from all the liable parties and no selective approach had been adopted by the bank in this regard. The co-borrower i.e. Alok Kumar has been terminated from his place of employment and therefore it is not practically possible to attach his salary. Procedure to seize mortgaged property has been initiated by the bank. However, mortgaged property being seized & auctioned off for recovery of dues is in practice treated as last resort. The loan facility extended by the bank in this case is specifically based on the borrower's salary. The sanction letter dated 23.1.2015 clearly takes note of both the borrower's salary while determining the viability of loan. Details of both co-borrower's salary accounts were taken into consideration in this regard. The bank in its letter dated 21.6.2023 to the Branch Manager of State Bank of India, Farrukhabad had clearly stated that only 60% per month of Smt. Sadhna Singh's salary be frozen, the rest be kept available to her for her expenses. Thereafter, another account of the petitioner has already been defreezed by the State Bank of India. He submits that SARFAESI Act is itself a self-contained Act and in case the petitioner is aggrieved, she may invoke the remedy as available in law. In support of his submissions he has placed reliance on the judgments in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors., (2004) 4 SCC 311; Transcore v. Union of India & Anr., (2008) 1 SCC 125; United Bank of India v. Satyawati Tandon & Ors., (2010) 8 SCC 110; Indian Bank v. Blue Jaggers Estates Ltd. & Ors., (2010) 8 SCC 129 and Kanaiyalal Lalchand Sachdev & Ors. v. State of Maharashtra & Ors., (2011) 2 SCC 782.

5. We have proceeded to examine the record in question as well as respectfully considered the judgments cited at Bar. The SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. Hon'ble the Apex Court has repeatedly reminded that the High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained, if alternate statutory remedies are available, except in cases falling within the well defined exceptions i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. (Ref. Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419.)

6. There is no pleading in the present matter why the remedy, which was available to the parties under Section 17 of the SARFAESI Act before the Debt Recovery Tribunal was not evoked or the same was not efficacious. The practice of entertaining the writ petition under Art.226 of the Constitution is again deprecated by Hon'ble the Apex Court in Authorized officer, State Bank of Travancore & Anr. v. Mathew K.C., (2018) 3 SCC 85 and South Indian Bank Ltd. & Ors. v. Naveen Mathew Philip & Anr., 2023 SCC OnLine SC 435 (Para 43).

7. In the facts and circumstances of the case, we are not inclined to interfere in the matter at this stage. The writ petition stands dismissed accordingly. Needless to say, the petitioner will be at liberty to avail the remedy as available in law.

Order Date :- 29.8.2023

Pratima