Smt. Salam (O) Sakhi Devi vs Ubi & Ors
2022 Latest Caselaw 290 Mani

LAISHRAM     Digitally signed by LAISHRAM
             DHAKESHORI DEVI
DHAKESHORI   Date: 2022.07.08 16:26:13
                                                                                          Item No. 17
DEVI         +05'30'



                                               IN THE HIGH COURT OF MANIPUR
                                                            AT IMPHAL

                 WP(C) No. 132 of 2019
                 Smt. Salam (O) Sakhi Devi                                        ...Petitioner/s
                             Vs.
                 UBI & ors.                                                       ...Respondent/s

B E F O R E HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH 08-07-2022 Heard Mr. Anjan Prasad Sahu, learned counsel appearing

for the petitioner and Mr. L. Gunindro, learned counsel for the

respondents.

[2] At the outset, Mr. L. Gunindro, learned counsel appearing

for the respondents raised a preliminary objection regarding the

maintainability of the present writ petition. It has been submitted by the

learned counsel for the respondents that if the petitioner is aggrieved

by the proceeding under section 13 of the SARFAESI Act, 2002 for

recovery of the Housing Loan taken by the petitioner, the petitioner has

an alternative and effective statutory remedy to approach the Debt

Recovery Tribunal under section 17 of the SARFAESI Act followed by

right of appeal before the Appellate Tribunal under section 18 of the

said act. It is also submitted that the SARFAESI Act is a complete code

by itself providing for expeditious recovery of dues arising out of loan

granted by the financial institutions, the remedy of appeal by the

aggrieved under section 17 before the Dept Recovery Tribunal followed

by a right to appeal before the Appellate Tribunal under section 18. The

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learned counsel further submitted that without availing such effective

and expeditious alternative statutory remedy available under the said

act, the petitioner approached this Court by filing the present writ

petition for redressing her grievance and accordingly, such writ petition

should not be entertained by this Court and the present writ petition

deserves to be dismissed outright as being not maintainable. In support

of his contention, the learned counsel relied on the following judgments

of the Hon'ble Apex Court;

1) "United Bank of India -vrs.- Satyawati Tondon & ors." Reported in (2010) 8 SCC 110.

"42. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective."

"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State

WP(C) No. 132 of 2019 Page 2

Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."

"44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution."

"45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls

WP(C) No. 132 of 2019 Page 3

within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corporation v. Registrar of Trade Marks and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order."

"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 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."

2) "Agarwal Tracom Private Ltd. -vrs.- Punjab National Bank & ors." Reported in (2018)1 SCC 626.

"33. In the light of the foregoing discussion, we are of the considered opinion that the writ court as also the appellate court were justified in dismissing the appellant's writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of the SARFAESI Act before the Tribunal concerned to challenge the action of PNB in forfeiting the appellant's deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court."

3) "Authorized Officer, State Bank of Travancore & anr.

-vrs.- Nathew K.C" Reported in (2018) 3 SCC 85.

"15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to

WP(C) No. 132 of 2019 Page 4

say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon has also not been kept in mind before passing the impugned interim order:-

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

"16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be

WP(C) No. 132 of 2019 Page 5

sought of the interim order cannot be considered sufficient justification to have declined interference."

"17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd., observing :-

"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."

[3] Mr. Anjan Prasad Sahu, learned counsel appearing for the

petitioner submitted that the Debts Recovery Tribunal is situated at

Guwahati, which is more than 500 Km. away from the residence of the

petitioner and that in her present financial condition, the petitioner has

no means to approach the Debts Recovery Tribunal by filing an

application as provided under section 17 of the SARFAESI Act. It has

also been submitted by the learned counsel for the petitioner that the

powers conferred upon the High Court under Article 226 of the

Constitution to issue any orders or writs for enforcement of any

fundamental right or any other purposes are very wide and there is no

express limitation on exercise of that discretionary power. The learned

counsel further submitted that in all the judgments cited by the learned

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counsel for the respondents, the Hon'ble Apex Court did not express

any absolute bar in exercising the discretionary powers conferred upon

the High Court under Article 226 of the Constitution if there is

availability of alternative remedy and accordingly, learned counsel

submitted that this Court can entertain the present writ petition and

decide the issues raised therein by exercising it discretionary powers, if

this High Court so desires. Learned counsel accordingly, submitted that

there is no merit in the submission advanced by the learned counsel

appearing for the respondents and that this Court can entertain the

present writ petition.

[4] After hearing the rival submissions advanced by the

learned counsel appearing for the parties and after careful perusal of

the record of the present case and the judgments of the Hon'ble Apex

Court cited herein above by the learned counsel for the respondents

as well as the relevant provisions of the SARFAESI Act, this Court is

not inclined to exercise its discretionary jurisdiction and accordingly,

the present writ petition is dismissed.

[5] It is, however, made clear that the petitioner is at liberty to

approach the competent authorities as provided under section 17 of the

SARFAESI Act by filing an appropriate application and that in the event

of filing such application by the petitioner before the Debts Recovery

Tribunal under section 17 of the SARFAESI Act, the period from the

date of filing the present writ petition till the date of passing this order

WP(C) No. 132 of 2019 Page 7

should be excluded at the time of calculating the period of limitation in

approaching the Debts Recovery Tribunal.

                                                     JUDGE

Dhakeshori




WP(C) No. 132 of 2019                                              Page 8