Chandrakala Deshpande And 3 ... vs The Debts Recovery Tribunal, 2Nd ...
2021 Latest Caselaw 1593 Tel

       HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

AND HON'BLE DR. JUSTICE SHAMEEM AKTHER Writ Petition No.3344 of 2021

ORDER: (Per Hon'ble Sri Justice A.Rajasheker Reddy)

This Writ Petition is filed against orders dated 17.01.2020

passed by the Debts Recovery Tribunal (for short, 'Tribunal') in

I.A.No.3682 of 2020 in S.A.No.1187 of 2017, wherein and

whereby the Tribunal allowed the application filed by the

petitioner for producing documentary evidence while dismissing

the petition for adducing oral evidence.

Heard Sri Rakesh Sanghi, learned counsel for the

petitioner, who submits that when fraud is alleged and the

criminal case is registered against the principal borrower by the

CBI, then it is for the guarantor to lead the oral evidence also to

prove the same. But the DRT has not considered the said aspect

in proper perspective and allowed the application only in part to

the extent of documentary evidence. He also complains that the

Tribunal has not followed the judgments of Hon'ble Supreme

Court. In support of his contention, he relied on the judgments

reported in Syed Shah Ghulam Ghouse MOhiuddin Khamesul

Quadri v. Syed Shah Abdul Har Khamisul Quadri [AIR 1959 AP

212], Whirlpool Corporation v. Registrar of Trade Marks [AIR

1999 SC 22] and Ayyaubkhan Noorkhan Pathan v. State of

Maharashtra [AIR 2013 SC 58]. He also submits that since the

matter involves Rs.200.00 Crores, the writ petition should be

entertained.

In this case, it is to be seen that the learned counsel for

the petitioner does not dispute that he has efficacious alternate

remedy under Section 18 of the SARFAESI Act, 2002. However,

he states that availability of alternate remedy is no bar and that

was not come in the way of this Court for exercising the

extraordinary jurisdiction under Article 226 of the Constitution of

India. No doubt, we are not on the opinion that this writ petition

is not maintainable, but the question why we should entertain

when efficacious alternate remedy is available to the petitioner

under law before the Tribunal under Section 18 of the Act. More

so, the Tribunal is headed by a retired High Court Judge. Learned

counsel for the petitioner contends that since the matter involves

Rs.200.00 Crores, this Court should entertain the writ petition,

we afraid, on that ground, we cannot entertain the writ petition.

No doubt, in Whirlpool Corporation v. Registrar of Trade

Marks (supra), the Hon'ble Apex Court held that when there is a

violation of principles of natural justice, when the impugned

order is without jurisdiction and when the order is patently

illegal, the writ petition can be entertained. But a perusal of the

impugned order, we feel that it is not a fit case where we should

exercise extraordinary discretionary jurisdiction under Article 226

of the Constitution of India bypassing the alternate remedy under

Section 18 of the Act of 2002. No extraordinary circumstances

are brought to the notice of this Court in entertaining the writ

petition bypassing alternate remedy.

In view of availability of alternate remedy and since we

are relegating the party to alternate remedy, we are not inclined

to go into the merits of the case. The petitioner can raise all the

pleas before the Appellate Tribunal, which are raised herein and

it is for the Tribunal to consider the same. Even after disposal of

the Appeal before the Appellate Tribunal, the petitioner is not

remediless as he can challenge the said orders, if he is so

aggrieved.

In view of above facts and circumstances, this Writ

Petition is disposed of granting liberty to the petitioner to avail

alternate remedy under Section 18 of the Act of 2002.

There shall be no order as to costs. As a sequel thereto,

miscellaneous petitions, if any, pending in this Writ Petition shall

stand closed.

__________________________

A.RAJASHEKER REDDY, J

__________________________

DR.SHAMEEM AKTHER, J Date:09.06.2021 kvs/tk