Gujarat High Court
Heirs Of Hiralal Devabhai Vadher ... vs State Of Gujarat on 4 May, 2022
Bench: Vaibhavi D. Nanavati
C/SCA/7854/2021 ORDER DATED: 04/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7854 of 2021
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 7854 of 2021
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HEIRS OF HIRALAL DEVABHAI VADHER YASHWANT HIRALAL VADHER
Versus
STATE OF GUJARAT
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Appearance:
MR SL VAISHYA(960) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR NIKUNJ D BALAR(2763) for the Respondent(s) No. 2
MR RATHIN P RAVAL(5013) for the Respondent(s) No. 4
NOTICE UNSERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/05/2022
ORAL ORDER
1. The present writ application is filed under
Article 226 of the Constitution of India, seeking the
following relief :
"Your Lordships may be pleased to pass appropriate
writ, order, relief, direction directing to the
respondent bank notice dtd. 06/11/2020 of
Rs.2,24,384.83 to quash and set aside through his
advocate in the interest of justice."
2. The writ applicant herein is aggrieved and
dissatisfied by the notice dated 06.11.2020 issued by
the respondent No.3 advocate Amit Kumar, which is
sent to the petitioner's and and petitioner regarding
Rs.2,24,384.83/- from the credit information company.
C/SCA/7854/2021 ORDER DATED: 04/05/2022
3. It appears that the petitioner's father has
taken loan from HDFC Bank, Keshod Branch, Dict.
Junagadh and the petitioner's father has taken
insurance from HDFC Ergo General Insurance Company.
The said certificate of insurance
No.2950201622637400000 is duly produced at page no.14
of the petition. It further appears that some
installments were due to be paid by the petitioner.
Accordingly, the Bank issued notice to the petitioner
on 06.11.2020.
3.1 It is the case of the petitioner that when
the vehicle was purchased, at that time the HDFC Bank
had also given insurance before taking the possession
of the vehicle. An affidavit-in-reply is also filed
by the respondent No.4 Bank.
4. Mr.Nikunj Balar, the learned advocate appearing
for the respondent No.2 - the Branch Manager, HDFC
Bank, submitted that the writ applicant has
challenged the legal notice issued by the advocate
and no further proceedings are initiated by the Bank
against the petitioner. It is further submitted that
no writ would lie against a private party i.e. an
advocate who issued the notice. The advocate is also
a party respondent No.3 in the present proceedings.
5. Mr.Rathin Raval, the learned advocate appearing
for the respondent No.4 - Insurance Company submitted
that the claim of the petitioner's family is
C/SCA/7854/2021 ORDER DATED: 04/05/2022
repudiated. It is open for the writ applicant to
avail statutory remedy available to the to the writ
applicant by approaching the Consumer Forum against
the repudiation letter. Mr.Raval submitted that no
writ would lie and that the present writ application
may not be entertained.
6. It would be appropriate at this stage to refer
to the decisions rendered by the Supreme Court.
6.1 In case of Authorized Officer, State Bank
of Travancore Versus K.C. Mathew, reported in 2018
(3) SCC 85, in paragraph 6, the Supreme Court has
observed as under :
"6 We have considered the submissions on behalf of
the parties. Normally this Court in exercise of
jurisdiction under Article 136 of the Constitution
is loathe to interfere with an interim order passed
in a pending proceeding before the High Court,
except in special circumstances, to prevent manifest
injustice or abuse of the process of the court. In
the present case, the facts are not in dispute. 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 as observed in Commissioner of
Income Tax and Others v. Chhabil Dass Agarwal, 2014
(1) SCC 603, as follows:
"15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of
alternative remedy i.e. where the statutory
authority has not acted in accordance with the
C/SCA/7854/2021 ORDER DATED: 04/05/2022
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, the proposition laid down in Thansingh
Nathmal case, Titaghur Paper Mills case and other
similar judgments that the High Court will not
entertain a petition under Article 226 of the
Constitution if an effective alternative remedy is
available to the aggrieved person or the statute
under which the action complained of has been taken
itself contains a mechanism for redressal of
grievance still holds the field. Therefore, when a
statutory forum is created by law for redressal of
grievances, a writ petition should not be
entertained ignoring the statutory dispensation."
6.2 In case of Shubhas Jain Versus Rajeshwari
Shivam, rendered in Civil Appeal No.2848 of 2021,
dated 20th July, 2021, in paragraph 26, the Supreme
Court has observed as under :
"26. It is well settled that the High Court
exercising its extraordinary writ jurisdiction under
Article 226 of the Constitution of India, does not
adjudicate hotly disputed questions of facts."
7. Having heard the learned advocates appearing for
the respective parties and having considered the
ratio laid down by the Supreme Court as aforesaid, in
view of this Court, the writ would not lie against
the respondent No.3 a private person who issued
notice to the writ applicant. Further, so far as the
claim with respect to the insurance company is
concerned, it is open for the writ applicant to avail
statutory remedy under the provisions of law as
C/SCA/7854/2021 ORDER DATED: 04/05/2022
available to the writ applicant. This Court has
otherwise not assessed the writ application on
merits. It is open for the writ applicant to approach
the respondent Bank also for further communication.
7. With the above observations and directions, this
writ application is disposed of. Notice is
discharged. Interim relief if any stands vacated.
8. In view of the disposal of the main matter, the
civil application will not survive and the same
stands disposed of.
(VAIBHAVI D. NANAVATI,J)
Dolly
