Rajasthan High Court
Rajendra Kumar Sharma S/O Shri ... vs The Department Of Financial ... on 17 November, 2021
Bench: Akil Kureshi, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 960/2021
Rajendra Kumar Sharma S/o Shri Sitaram Sharma, Aged About
34 Years, Resident Of 137, Hathroi Bawadi, Society, Ward 18,
Gopalbari, Ajmer Road, Jaipur (Rajasthan) Presently Residing At
B 41, Sudarshanpura Industrial Area, 22 Godown, Jaipur-302006
(Rajasthan)
----Appellant
Versus
1. The Department Of Financial Services, Through Its
Secretary (Fs) Ministry Of Finance 6A, 3Rd Floor, Jeevan
Deep Building Sansad Marg, New Delhi 110001.
2. Reserve Bank Of India, Through Its Regional Director
Rambagh Circle Tonk Road Jaipur 302004 (Rajasthan)
3. Agriwise Finserv Limited, Through Its Managing Director,
Sahar Palaza Complex, A Wing 601-604 Bonanza
Building, Near Chakala Metro Station A K Road, Andheri
(East) Mumbai 400059. Regional Office At 501-502, 5Th
Floor, Corporate Park Near Ajmer Pulia, Jaipur (Rajasthan)
----Respondents
For Appellant(s) : Mr. Hans Kumar Sharma
For Respondent(s) :
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MS. JUSTICE REKHA BORANA
Order
17/11/2021
This appeal is directed against the judgment of the learned
Single Judge dated 27.10.2021 in Civil Writ Petition
No.8459/2021. The appellant-original petitioner is a borrower.
Respondent No.3 is a secured creditor. The creditor had initiated
proceedings under Section 13(2) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
(2 of 3) [SAW-960/2021]
Interest Act, 2002 (hereinafter to be referred as 'the SARFAESI
Act') upon which the petitioner had approached the DRT.
According to the respondents DRT had refused to stay the
demands. Thereupon the petitioner filed the present writ petition
in which initially the learned Single Judge on 25.08.2021 granted
stay of the operation of the impugned demand notice dated
20.07.2020 issued under Section 13(2) of the SARFAESI Act.
Eventually by the impugned order dated 27.10.2021 this interim
relief was vacated. It was observed that with respect to the same
subject matter property the proceedings are pending before DRT.
However since the petitioner wanted to argue the matter on
merits to settle the law for future, the writ petition was ordered to
be listed for final disposal and in the meantime interim relief was
vacated.
This action of learned Single Judge to vacate the interim
relief has been challenged in this appeal. Perusal of the petition
would show that the petitioner had made prayers for considering
his representation made to the authorities demanding justice and
to initiate investigation into the affairs of the NBFC concerned. He
had also prayed for a declaration that advancing of agricultural
term loan for business purposes was illegal. His final relief was to
declare the demand notice dated 20.07.2020 as contrary to law.
To begin with the prayers made by the petitioner are
disjoined and could not have been contained in a single petition.
His dispute with regard to illegality of the NBFC concerned
disbursing the agricultural term loan had no relation with the
recovery notice dated 20.07.2020 issued by the secured creditor
under Section 13(2) of the SARFAESI Act. Be that as it may, since
the petitioner's challenge to the said notice is raised before the
(3 of 3) [SAW-960/2021]
DRT, the petitioner could not have approached the High Court in
relation to this prayer. Learned counsel for the petitioner may be
correct in contending that availability of alternative remedy is not
an absolute bar on exercise of writ jurisdiction if otherwise
available in a given case. However in the present case we are not
concerned with the correctness or propriety of exercising writ
jurisdiction on the face of availability of alternative remedy. We
are concerned with the situation where a litigant wishes to pursue,
two remedies parallelly which is not permissible in law.
If this much is clear, the petitioner's relief for interim
protection which was in connection with the implementation of the
demand notice dated 20.07.2020 cannot be granted. Once we
hold that the primary challenge to this demand notice was not
maintainable before the High Court the question of granting
interim relief does not arise. The order vacating the interim relief
was thus unexceptionable.
The appeal is dismissed.
(REKHA BORANA),J (AKIL KURESHI),CJ
KAMLESH KUMAR/N.GANDHI/18
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