Hari Pada Saha & Ors vs The State Of West Bengal & Ors
2023 Latest Caselaw 2753 Cal

Item No.2


            IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE
                            HEARD ON: 20.04.2023

                          DELIVERED ON: 20.04.2023

                             CORAM:
        THE HON'BLE ACTING CHIEF JUSTICE T. S. SIVAGNANAM
                               AND
          THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA

                            MAT 433 OF 2023
                                  With
                            I.A. No. CAN 1 of 2023

                          Hari Pada Saha & Ors.
                                   Vs.
                     The State of West Bengal & Ors.


Appearance:-
Mr. Ajay Debnath
Mr. Sujit Saha
Mr. Devranjan Das
Ms. Swagata Datta           ...... for the appellants

Mr. Rupak Ghosh
Mr. Prantik Gorai           ......for the State

Mr. Siddhartha Banerjee
Ms. Soni Ojha               .......for the respondent no. 3

Mr. Kumarjyoti Tewari       ........for the Union of India


                                JUDGMENT

(Judgment of the Court was delivered by T.S. SIVAGNANAM, ACJ.)

1. This intra-Court appeal is directed against the order

dated 23rd February, 2023 in W.P.A. 4264 of 2023. The

appellants, who had borrowed loan from the 3rd

respondent/finance company came before the Writ Court with a

prayer that the Debts Recovery Tribunal does not have regular

sitting, more particularly, D.R.T. - III and interim

protection has to be granted to the appellants as the 3 rd

respondent has taken possession of the property, which was

mortgaged and an e-auction notice has been issued.

2. The learned Writ Court dismissed the writ petition by the

impugned order. When the appeal was entertained by order

dated 16th March, 2023, the Division Bench restrained the 3 rd

respondent/finance company from confirming the auction sale

already held till 12th April, 2023.

3. The learned advocate appearing for the appellants had

mentioned this matter before this Court on 19 th April, 2023

submitting that the order of stay had expired on 12th April,

2023 and the 3rd respondent will proceed to confirm the auction

sale.

4. The learned advocate appearing for the 3rd respondent/

finance company would submit that as on date, D.R.T. - I is

taking up all applications, which have been assigned to D.R.T.

- III and all that the appellants should have done is to file

a put up petition before the Tribunal for the matter to be

taken up. Since the cases assigned to D.R.T. - III are taken

up by the D.R.T. - I and the appellants have taken no steps to

bring up the matter before the Tribunal, thus, we need to

consider as to what relief the appellants would be entitled

to.

5. At the outset, we need to point out that a writ petition

at the instance of a borrower from a private finance company

is not maintainable. We are guided by the recent decision of

the Hon'ble Supreme Court in M/s. South Indian Bank Ltd. &

Ors. vs. Naveen Mathew Philip & Anr. etc. etc. (SLP [Civil]

Nos. 22021-22022 of 2022) dated 17th April, 2023 . In the said

decision, the bank was a private party and the question was

whether a writ petition could have been entertained by the

High Court. The Hon'ble Supreme Court held that a writ of

mandamus is a prerogative writ and in the absence of any legal

right, the Court cannot exercise the said power and more

circumspection is required in a financial transaction,

particularly when one of the parties would not come within the

purview of Article 12 of the Constitution of India. Further,

it was held that when a statute prescribes a particular mode,

an attempt to circumvent shall not be encouraged by a writ

court and a litigant cannot avoid the non-compliance of

approaching the Tribunal, which requires the prescription of

fees and use the Constitutional remedy as an alternative. In

this regard reference was made to the decision of the Hon'ble

Supreme Court in Radha Krishan Industries v. State of H.P.,

(2021) 6 SCC 771.

6. Further, the Hon'ble Supreme Court also reiterated the

decision of law regarding the interference of the High Courts

in matters pertaining to SARFAESI Act and referred to several

decisions in this regard and the latest being in the case of

Varimadugu Obi Reddy v. B. Sreenivasulu, (2023) 2 SCC 168.

7. Further, the Hon'ble Supreme Court pointed out that the

power conferred under Article 226 of the Constitution of India

are rather wide but are required to be exercised only in

extraordinary circumstances in matters pertaining to

proceedings and adjudicatory scheme qua a statute, more so in

commercial matters involving a lender and a borrower, when the

legislature has provided for a specific mechanism for

appropriate redressal.

8. Bearing in mind the above legal principles in mind, if we

examine the facts of the case, the appellants had already

approached the Tribunal and filed an application in S.A. 265

of 2021 challenging the measures initiated by the 3 rd

respondent/finance company under the provisions of the

SARFAESI Act. The grievance of the appellants is that the

interlocutory applications filed by the appellants for stay of

the e-auction and for grant of an order of injunction against

the 3rd respondent to give effect to the e-auction notice dated

24th February, 2023 is pending and the applications have not

been taken up for consideration.

9. We are informed by the learned advocate appearing for the

3rd respondent that if prayer was made before D.R.T. - I, the

applications would have been listed but the appellants had not

taken diligent steps in this regard. Considering the fact

that D.R.T. - III is vacant as on date and D.R.T. - II is also

vacant and the matters are being dealt with by D.R.T. - I, we

are of the view that though a writ petition is not

maintainable especially when the appellants have already

invoked the remedy available under the SARFAESI Act and the

application for interim relief is still pending before the

D.R.T, we are inclined to issue a direction in this regard.

10. Accordingly, the appeal stands disposed of alongwith the

connected application by requesting the D.R.T. - I to take up

for consideration I.A. No.583 of 2023 and I.A. No.566 of 2023

in S.A. No.265 of 2021 at an early date, preferably before 12 th

May, 2023. Till then, the interim order, which was granted by

the Hon'ble Division Bench dated 16th March, 2023 shall

continue.

11. There shall be no order as to costs.

12. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

( T.S. SIVAGNANAM) Acting Chief Justice

I agree,

(HIRANMAY BHATTACHARYYA, J.)

PALLAB/KS(AR.C)