Andhra Pradesh High Court - Amravati
M/S Jaya Manikanta Arc Welding And ... vs The State Bank Of India, on 5 August, 2024
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF Bench
APHC010335412024 Sr.No:-5
ANDHRA PRADESH
[3443]
AT AMARAVATI
WRIT PETITION NO: 16959
of 2024
M/s. Jaya Manikanta Arc Welding & ...Petitioners
Design Works and others
Vs.
The State Bank of India ...Respondent
**********
Sri Narasimha Rao Gudiseva, learned counsel for the petitioners.
Sri Challa Sreenivas, learned counsel appearing on behalf of
Sri K. B. Ramanna Dora, learned counsel for the respondent.
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE NINALA JAYASURYA
DATE : 5th August 2024
PC:
The petitioners challenge the order, dated 05.07.2024, in
Crl.M.P.No.111 of 2024 in C.F.No.190 of 2024 passed by the learned
Principal Assistant Sessions Judge - cum - Chief Judicial Magistrate,
Machilipatnam appointing an Advocate Commissioner for taking over
possession of the schedule property.
2. Learned counsel for the petitioners states that the entire proceedings
initiated at the behest of the respondent Bank i.e., State Bank of India is
without any legal basis inasmuch as in the earlier Securitization Application
filed by the petitioners, the Debts Recovery Tribunal, Visakhapatnam, by its
order, dated 10.03.2023, in I.A.No.426 of 2023 in S.A.No.131 of 2023 was
pleased to order the schedule, according to which, the repayment had to be
made by the petitioners. It is stated that the earlier S.A. had been filed when
the bank had served upon the petitioners demand notice amounting to
Rs.18,20,075/-. It is stated that after the passing of the order by the D.R.T. on
10.03.2023, instead of Rs.18,20,075/-, which was the amount reflected in the
notice issued by the bank, the petitioners had repaid to the bank as per the
directions issued by the D.R.T. an amount of Rs.19,85,755/- strictly in
accordance with the schedule. It is stated that the petitioners remained
confident that since the amount had already been paid as per the schedule
fixed by the D.R.T., they need not any further pursue the matter before the
D.R.T. Absence of the petitioners from the D.R.T. led to the dismissal of the
S.A. on 17.04.2024. In the meantime, the respondent Bank appears to have
initiated action yet again by filing an application before the Chief Judicial
Magistrate in which it was reflected that an amount of Rs.18,20,075/- still
remained unpaid.
3. Learned counsel for the petitioners states that the entire basis for the
bank in approaching the Chief Judicial Magistrate was based upon false
grounds inasmuch as it was impossible that the bank, even after receiving an
amount of Rs.19,85,755/-, would claim that Rs.18,20,075/- which was the
subject matter of the earlier notice and also the subject matter of scrutiny in
the S.A. before the D.R.T., would remain the same.
4. We have heard the learned counsel for the petitioners as also the
learned counsel for the respondent Bank, who sought some time to take
instructions in the matter.
5. Considering the ratio of the judgment rendered by the Apex Court in
PHR Invent Educational Society vs. UCO Bank and others1 whereby the
Apex Court had reiterated the principle that when an alternate remedy was
available to a person, the resort to extraordinary writ jurisdiction was not
permitted unless the Court was satisfied that the case of the petitioner fell
within any of the exceptions which had been crystallized by the Apex Court in
the case of Commissioner of Income Tax v. Chhabil Dass Agarwal2.
6. Reference in this regard can also be made to the case of United Bank
of India vs. Satyawati Tondon3 wherein the Apex Court held as under:-
"55. 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 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."
7. Considering the ratio in the aforementioned judgment, we find it difficult
to go into the question as to whether the petitioners had in fact paid the
amount as per the order of the D.R.T. within the schedule so fixed by it.
Although the petitioners have placed on record a statement of account, we
feel handicapped in reconciling the same. We, therefore, deem it appropriate
to relegate the petitioners to the alternate remedy before the D.R.T.,
Visakhapatnam.
2024 SCC Online SC 528
(2014)1 SCC 603
[(2010)8 SCC 110 : 2010 INSC 428]
8. However, learned counsel for the petitioners prays that since the
Advocate Commissioner is at the door of the petitioners and the petitioners
are likely to be evicted by force and under police protection, some breathing
time be given to the petitioners so that the case of the petitioners can be
appropriately adjudicated before the D.R.T. making the alternate remedy
meaningful.
9. Be that as it may, while we do not find any merit in the present petition
on account of the principle laid down in the aforementioned judgments,
however, in the interest of justice, we direct the maintenance of status quo for
a period of ten (10) days only with a view to enable the petitioners to approach
the D.R.T.
10. Accordingly, the Writ Petition is disposed of. No costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ
NINALA JAYASURYA, J
AMD
Note:-
Furnish C.C. today.
B/O
AMD
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT PETITION NO: 16959 of 2024
Dt:05.08.2024
AMD
