Delhi High Court
Amish Jain And Anr vs Icici Bank Ltd. on 4 February, 2016
Author: Rajiv Sahai Endlaw
$~1 to 3 & 8.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8516/2015 & CMs No.223/2016 & 21758/2016 (both u/S
151 CPC)
AMISH JAIN & ANR ..... Petitioners
Through: Mr. Amish Jain, petitioner no.1 in
person.
Versus
ICICI BANK LTD. ..... Respondent
Through: Mr. Punit K. Bhalla & Ms. Chetna
Bhalla, Advs.
AND
+ W.P.(C) 9317/2015, CM No.23662/2015 (for filing additional
documents & CM No.224/2016 (u/S 151 CPC)
AMISH JAIN AND ANR ..... Petitioners
Through: Mr. Amish Jain, petitioner no.1 in
person.
Versus
ICICI BANK LTD. ..... Respondent
Through: Mr. Punit K. Bhalla & Ms. Chetna
Bhalla, Advs.
AND
+ W.P.(C) 9383/2015, CM No.23663/2015 (for filing additional
documents & CM No.222/2016 (u/S 151 CPC)
AMISH JAIN & ORS ..... Petitioners
Through: Mr. Amish Jain, petitioner no.1 in
person.
Versus
ICICI BANK LTD. ..... Respondent
Through: Mr. Punit K. Bhalla & Ms. Chetna
Bhalla, Advs.
AND
+ W.P.(C) 858/2016
AMISH JAIN & ANR ..... Petitioner
Through: Mr. Amish Jain, petitioner no.1 in
person.
Versus
W.P.(C) Nos.8516/2015, 9317/2015, 9383/2015 & 858/2016 Page 1 of 9
ICICI BANK LTD. ..... Respondent
Through: Mr. Punit K. Bhalla & Ms. Chetna
Bhalla, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 04.02.2016
CM No.3772/2016 in W.P.(C) 858/2016 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
W.P.(C) Nos.8516/2015, 9317/2015, 9383/2015 & 858/2016
3. W.P.(C) Nos.8516/2015, 9317/2015 & 9383/2015 have in the past
been adjourned on four occasions on the request of the petitioner no.1 who
appears in person that he needs to prepare the matter and / or file further
documents. W.P.(C) No.858/2016 has come before this Court for the first
time today.
4. The petitioner no.1 appearing in person today also states that the
petitions be adjourned to enable him to file documents.
5. The petitioners ought not to have filed these petitions, if were not
ready and / or prepared to argue the matters. Such repeated listing of
petitions cannot be permitted.
6. The petitioner no.1 then states that he is ready to argue the matters
today itself and has been heard.
7. It is the case of the petitioners that they had availed of a 'home loan'
and a 'loan against property' from the Meerut branch of the respondent
Bank and had mortgaged their property at Meerut to secure the same. The
petitioner no.1 states that the respondent Bank in the year 2011 instituted
proceeding under the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest (SARFAESI) Act, 2002 with respect to
the loan subject matter of W.P.(C) No.9383/2015 in the year 2012 and with
respect to the loan subject matter of W.P.(C) No.858/2016 no proceeding
has been initiated as yet. On enquiry, it is informed that one property was
mortgaged for loan subject matter of W.P.(C) Nos.8516/2015 and 858/2016
and the other property was mortgaged for loan in W.P.(C) Nos.9317/2015 &
9383/2015. It is further stated that though in the year 2014 application
under Section 14 of the SARFAESI Act was filed with respect to loan
subject matter of W.P.(C) No. 8516/2015 but the said proceeding was
withdrawn and the proceeding with respect to loan subject matter of W.P.(C)
No.9383/2015 was closed by the Additional District Magistrate (ADM),
Meerut for non filing by the respondent Bank of the requisite documents. It
is further informed that proceedings under Section 14 of the SARFAESI Act
were initiated in the year 2013 with respect to loan subject matter of
W.P.(C) No.9317/2015 but were also closed by the ADM, Meerut because
of non filing of documents by the respondent Bank.
8. The challenge in these petitions is to the action by the respondent
Bank under Sections 13(2), 13(4) and 14 of the SARFAESI Act.
9. The petitions are listed subject to the office objections as to the
maintainability and territorial jurisdiction.
10. The petitioner no.1 states that this Court would have territorial
jurisdiction since the notices under Section 13(2), 13(4) and the petition
under Section 14 were issued from and filed by the Delhi branch of the
respondent Bank.
11. The counsel for the respondent Bank appearing on advance notice
states that all notices under the SARFAESI Act with respect to entire
northern region are issued from the Delhi branch of the respondent Bank.
12. The petitioners had earlier filed W.P.(C) No.3957/2012, with respect
to the loan subject matter of W.P.(C) No.9317/2015, impugning the order of
the Debt Recovery Tribunal (DRT), Delhi holding that it had no jurisdiction
to entertain the appeal then preferred by the petitioners under Section 17 of
the SARFAESI Act for the reason of the petitioners being residents of
outside Delhi and for the reason of the loan having been sanctioned by the
branch of the respondent Bank at Meerut and being repayable at Meerut and
the mortgaged property also being at Meerut; the DRT further held that
merely because the notice under Section 13(2) of the SARFAESI Act had
been issued by the Jhandewalan Branch of the respondent Bank would not
vest the DRT, Delhi a jurisdiction to entertain the appeal in Delhi and that
the Bank under Section 14 of the SARFAESI Act would also have to
approach the concerned District Magistrate at Meerut and not the CMM at
Delhi.
13. The question of territorial jurisdiction raised in the aforesaid petition
filed by the petitioners was referred to a Full Bench of this Court and which
has vide judgment dated 13th September, 2012 upheld the order of the DRT.
14. The petitioner no.1 on enquiry states that though the petitioners had
preferred SLP(C) No.33516/2012 against the aforesaid judgment of this
Court and leave was granted therein converting it into a Civil Appeal
No.9195/2012 but the petitioners on 20th July, 2015 withdrew the same.
15. The petitioner no.1 states that though in the aforesaid view, the
petitioners cannot approach the DRT, Delhi and will have to approach DRT,
Lucknow for redressal of their grievance but are entitled to maintain the
present petitions against the actions of the respondent bank originating from
the jurisdiction of this Court at Delhi. It is further argued that owing to the
availability of the alternative remedy under the SARFAESI Act, the remedy
under Article 226 cannot be deprived.
16. The petitioner no.1 also states that though the petitioners, with the
grievance as urged in W.P.(C) Nos.8516/2015, 9317/2015 & 9383/2015, had
approached the Supreme Court by way of writ petitions under Article 32 of
the Constitution of India being writ petitions no.1056/2015, 3205/2015 and
535/2015 but the said petitions were withdrawn with liberty to take
appropriate action and it is thereafter that writ petitions 8516/2015,
9317/2015 & 9383/2015 have been filed.
17. The counsel for the respondent Bank has in response drawn attention
to the judgment dated 9th December, 2014 of the Division Bench of this
Court in LPA No.784/2014 titled M/s Sigma Generators Pvt. Ltd. Vs.
Oriental Bank of Commerce holding a writ remedy to be not appropriate
owing to the SARFAESI Act being a self-contained code and the remedies
provided therein being alternative efficacious remedy. Attention in this
regard is also invited to the judgment dated 22nd November, 2013 in W.P.(C)
No.2132/2012 titled Bijender Kumar Gupta Vs. Corporation Bank of
India. Attention is also drawn to the judgment dated 9 th April, 2014 in Civil
Appeal No.4453/2014 titled Jacky Vs. Tiny @ Antony, though not in
relation to SARFAESI Act on the general proposition of non maintainability
of a writ petition if alternative remedy is provided.
18. Per contra, the petitioner no.1 has relied on Harbanslal Sahnia Vs.
Indian Oil Corporation Ltd. (2003) 2 SCC 107 and United Bank of India
Vs. Satyawati Tondon (2010) 9 SCR 1.
19. I may record that the Supreme Court, in relation to Income Tax Act,
1961, in CIT Vs. Chhabil Dass Aggarwal (2014) 1 SCC 603 has held a writ
petition, on the grounds of non compliance of principles of natural justice
and lack of jurisdiction also to be not maintainable when alternative remedy
is provided in the special statute and when the said grounds can also be
taken therein. Following the said judgment the Division Bench of this Court
in Yashwant Singh Vs. Indian Bank 220 (2015) DLT 667 has observed that
Article 226 of the Constitution of India has virtually been done away with
wherever the remedy against the order of a Tribunal or an authority
constituted under a special statute is provided for.
20. As far as the reliance by the petitioner no.1 on Satyawati Tondon
supra is concerned, the same was considered by the Division bench in M/s
Sigma Generators Pvt. Ltd. supra and thereafter held the writ petition to be
not maintainable in the context of the SARFAESI Act. It was observed that
SARFAESI Act being a special Act brought in the larger public interest and
finding the banks to be unable to expeditiously realise their dues by
encashment of the securities, interference in a writ jurisdictions would be
counterproductive.
21. I therefore hold the writ petitions to be not maintainable on the said
ground alone.
22. Even otherwise, once the loan is found to have been disbursed from
the branch of the respondent Bank at Meerut and was / is re-payable at
Meerut and the security is also situated at Meerut and the question that it is
the DRT or the Magistrate at Meerut only would have jurisdiction has been
authoritatively settled by the Full Bench of this Court, if this Court starts
entertaining these writ petitions, it will lead to a conflict, with the authorities
in the State of Uttar Pradesh who are not under the supervisory control of
this Court, passing orders inconsistent to the orders which may be passed in
these petitions if were to be entertained.
23. For all these reasons, I do not find any merit in these petitions which
are dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
FEBRUARY 04, 2016
'gsr'..
