Telangana High Court
Smt. Putha Vijaya Lakshmi vs Union Bank Of India on 1 July, 2022
Bench: Ujjal Bhuyan, A.Venkateshwara Reddy
* THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
+ W.P.Nos.29918, 29928, 31871 and 32730 of 2021
And
W.P.Nos.1980, 3396, 3415, 3451, 7516 and 8115 of 2022
% Date: 01-07-2022
# M/s.Maruthi Ginning and Pressing Factory and others
... Petitioners
v.
$ The Recovery Officer, Debts Recovery Tribunal-II, Hyderabad
and others
... Respondents
! Counsel for the Petitioners : Mr. V.V.Ramana, Mr. T.Vijay Kumar
Mr. P.Nagendra Reddy, Mr.D.Raghavulu,
Ms.P.Hamsa Durga, Ms.Mohana, Mr.Venkatesh
and Mr.G.K.Desh Pande
^ Counsel for respondents : Mr. B.S.Prasad
Learned Advocate General
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (2007) 1 SCC 97
2. (2012) 2 SCC 315
3. (2014) 9 SCC 329
4. (2015) 10 SCC 161
5. AIR 1961 SC 532
6. (2004) 6 SCC 254
7. 2006 SCC OnLine AP 843
8. 2011 (124) DRJ 633
9. (2017) 3 GLR 234
10. (1997) 3 SCC 261
11. 2022 SCC OnLine SC 16
12. (2012) 9 SCC 552
13. AIR 1955 SC 233
14. (1994) 4 SCC 711
15. (2006) 6 SCC 207
2
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
W.P.Nos.29918, 29928, 31871 and 32730 of 2021
And
W.P.Nos.1980, 3396, 3415, 3451, 7516 and 8115 of 2022
COMMON JUDGMENT AND ORDER:
(Per Hon'ble Sri Justice Ujjal Bhuyan)
We have heard Mr. V.V.Ramana, Mr.T.Vijay Kumar,
Mr.P.Nagendra Reddy, Mr.D.Raghavulu, Ms. P.Hamsa Durga,
Ms.Mohana, Mr.Venkatesh and Mr.G.K.Desh pande, learned counsel
for the petitioners. Also heard Mr.Ch.Srinivas, Mr.K.Viswanadham,
Mr.A.Krishnam Raju and Mr. Maruti Jadav, learned counsel for the
respondents.
2. On our request, Mr.B.S.Prasad, learned Advocate General for the
State of Telangana had appeared and assisted us in the hearing.
3. The core issue which has arisen for consideration in this batch of
writ petitions was summed up by this Court in the order dated
03.12.2021 passed in Writ Petition No.31871 of 2021. Therefore,
relevant portion of the order dated 03.12.2021 is extracted hereunder:
"Learned counsel for the petitioners to examine as to
whether this court would have territorial jurisdiction to entertain the
writ petition.
We may mention that the loan transaction had taken place at
Dharmavaram in the State of Andhra Pradesh. The borrowers and
the bankers are also at Dharmavaram, so also the guarantors. For
3
administrative exigency, disputes arising under the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 from Rayalaseema region of the State of Andhra
Pradesh are being taken up by the Debts Recovery Tribunal-II,
Hyderabad.
Question for consideration is whether any order or proceeding
of the Debts Recovery Tribunal-II, Hyderabad pertaining to issues
arising from the State of Andhra Pradesh would confer jurisdiction
on the High Court for the State of Telangana to adjudicate.
We would like to request the learned Advocate General for the
State of Telangana to assist us in the matter.
Let a copy of this order be served in the office of learned
Advocate General for the State of Telangana. Since we are
examining this issue, we expect that no coercive steps shall be
taken by the respondent/Bank till we decide this issue".
4. Thus, the issue arising in all the writ petitions is that whether
a subject matter taken up by the Debts Recovery Tribunal-II,
Hyderabad or any order passed by the said Tribunal on a dispute
arising out of the Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (briefly, 'the
SARFAESI Act' hereinafter) when both the parties to the dispute as
well as the cause of action had arisen in the State of Andhra
Pradesh?
5. In view of the issue under consideration, it may not be
necessary for us to narrate the facts of each individual case.
6. Before proceeding further, we may mention that there are two
Debts Recovery Tribunals in Hyderabad i.e. Debts Recovery Tribunal -
I, Hyderabad and Debts Recovery Tribunal - II, Hyderabad. Both the
4
Tribunals have territorial jurisdiction over the State of Telangana. For
a short while, both the Tribunals did not have presiding officers after
superannuation of the incumbent presiding officers. As a result, a
number of writ petitions came to be filed. Subsequently, new presiding
officer has joined in the Debts Recovery Tribunal - I at Hyderabad, but
Debts Recovery Tribunal - II, Hyderabad is still without any presiding
officer.
7. Government of India in the Ministry of Finance issued
Notification SO 254 (E) dated 25.01.2017. The notification states that
vide earlier notification of Government of India in the Ministry of
Finance dated 21.09.1999 Central Government had established one
Debts Recovery Tribunal at Hyderabad for the then composite State of
Andhra Pradesh. Thereafter, vide the notification dated 26.02.2002
Central Government established another Debts Recovery Tribunal at
Visakhapatnam in the composite State of Andhra Pradesh. After
bifurcation of the unified State of Andhra Pradesh into the States of
Telangana and Andhra Pradesh, Central Government considered it
necessary to establish one more Debts Recovery Tribunal at
Hyderabad in the State of Telangana. While the earlier Debts Recovery
Tribunal at Hyderabad came to be known as Debts Recovery Tribunal
- I, Hyderabad, Telangana, the newly established Debts Recovery
5
Tribunal was referred to as Debts Recovery Tribunal-II, Hyderabad,
Telangana. The existing Debts Recovery Tribunal at Visakhapatnam
came to be known as Debts Recovery Tribunal, Visakhapatnam,
Andhra Pradesh. By the aforesaid Notification dated 25.01.2017, the
areas of jurisdiction of the three Debts Recovery Tribunals were
specified. While the area of jurisdiction of Debts Recovery Tribunal-I,
Hyderabad covered entirely places within the State of Telangana, the
Debts Recovery Tribunal at Visakhapatnam covered areas which are
entirely in the State of Andhra Pradesh. It is only in respect of Debts
Recovery Tribunal - II at Hyderabad that the area of jurisdiction
comprised of places both in the State of Telangana and in the State of
Andhra Pradesh.
8. Area of jurisdiction of the Debts Recovery Tribunal-II, Hyderabad
in terms of the Notification dated 25.01.2017 is as under:
Sl.No. Name of Location Area of jurisdiction
Debts
Recovery
Tribunal
2. Debts First Floor, Ameerpet, Begumpet, Khairtabad,
Recovery Triveni Secunderabad, Shaikpet and
Tribunal-2, Complex, Tirumulgherry in Hyderabad district in
Hyderabad Abids, the State of Telangana, Rangareddy,
Hyderabad - Medchal and Vikarabad districts in the
500001 State of Telangana and Anantapur,
Chittoor, Cuddapah and Kurnool
districts in the State of Andhra
Pradesh
6
8.1. From the above, we find that in addition to Ameerpet, Begumpet,
Khairtabad, Secunderabad, Shaikpet and Trimalgherry in Hyderabad
district, Ranga Reddy, Medchal, and Vikarabad districts in the State of
Telangana, four districts of the State of Andhra Pradesh i.e.
Anantapur, Chittoor, Cuddapah and Kurnool are under the
jurisdiction of Debts Recovery Tribunal - II, Hyderabad. It appears
that these four districts from the Rayalseema region of the State of
Andhra Pradesh have been brought under the jurisdiction of Debts
Recovery Tribunal - II, Hyderabad for dealing with disputes under the
SARFAESI Act for administrative convenience.
9. Section 17 of the SARFAESI Act provides for application against
measures to recover secured debts. As per Sub-Section (1), any
person, including a borrower, aggrieved by any of the measures
referred to in Sub-Section (4) of Section 13 taken by the secured
creditor or by his authorized officer, may make an application along
with the prescribed fee to the Debts Recovery Tribunal having
jurisdiction in the matter within a period of 45 days from the date of
taking of such measures. Which Debts Recovery Tribunal would have
the jurisdiction is dealt with in Sub-Section (1A) of Section 17. Sub-
Section (1A) of Section 17 of the SARFAESI Act reads as under:
(1-A) An application under sub-section (1) shall be filed before the Debts
Recovery Tribunal within the local limits of whose jurisdiction-
7
(a) the cause of action, wholly or in part, arises;
(b) where the secured asset is located; or
(c) the branch or any other office of a bank or financial institution is
maintaining an account in which debt claimed is outstanding for the
time being.
9.1 From a reading of the above, it is seen that only that Debts
Recovery Tribunal would have the jurisdiction to entertain an
application filed under Sub-Section (1) of Section 17 within whose local
limits the cause of action, wholly or in part, arises; where the secured
asset is located; or the branch or any other office of a bank or financial
institution where the debt claimed is outstanding. In other words,
only that Debts Recovery Tribunal will have the jurisdiction where the
cause of action arises within its local limits or the secured asset is
located within its local limits or the secured creditor is located.
Therefore, if the loan transaction had taken place within the above
four districts of Andhra Pradesh; if the secured asset is located within
the said districts; and if the secured creditor is located therein, then
ordinarily the jurisdictional Debts Recovery Tribunal should have been
located in the State of Andhra Pradesh.
10. We may also refer to Section 19 of the Recovery of Debts and
Bankruptcy Act, 1993 (briefly, 'the 1993 Act' hereinafter) which
provides for filing of application by a bank or financial institution to
the jurisdictional Debts Recovery Tribunal for recovery of debt from
8
any person. Sub-Section (1) of Section 19 of the 1993 Act says that
where a bank or a financial institution has to recover any debt from
any person, it may make an application to the Tribunal within the
local limits of whose jurisdiction -
a) the branch or any other office of the bank or financial institution is
maintaining an account in which debt claimed is outstanding for the
time being; or
b) the defendant or each of the defendants where there are more than
one, at the time of making the application actually and voluntarily
resides or carries on business or personally works for gain; or
c) any of the defendants, where there are more than one, at the time of
making the application actually and voluntarily resides or carries on
business or personally works for gain; or
d) the cause of action, wholly or in part, arises.
10.1. Thus, the application referred to in Section 19 of the 1993
Act can be filed by a bank or financial institution, before that Debts
Recovery Tribunal within the local limits of whose jurisdiction the
branch or other office of the secured creditor is maintaining the loan
account or the defendant or each of the defendants (when there are
more than one defendant) at the time of making the application
actually and voluntarily resides or carries on business or personally
works for gain; or any of the defendants where there are more than one
defendant, at the time of making the application actually and
voluntarily resides or carries on business or personally works for gain
or the cause of action, wholly or in part arises.
9
11. Section 20 of the Code of Civil Procedure, 1908 (CPC) may also
have some relevance. Section 20 CPC says that subject to the
limitations mentioned in Sections 16 to 19 of CPC every suit shall be
instituted in a Court within the local limits of whose jurisdiction the
defendants reside or cause of action arises. It says that every suit
shall be instituted in a Court within the local limits of whose
jurisdiction -
a. the defendant or each of the defendants where there are more than
one at the time of commencement of the suit, actually and
voluntarily resides, or carries on business, or personally works for
gain; or
b. any of the defendants, where there are more than one at the time of
commencement of the suit, actually and voluntarily resides or
carries on business or personally works for gain provided that in
such case either the leave of the Court is given or the defendants
who do not reside or carry on business or personally work for gain
acquiesce in such institution, or
c. the cause of action, wholly or in part, arises.
11.1. Thus, what Section 20 CPC says is that ordinarily a suit is
to be instituted in a Court within the local limits or within whose
jurisdiction the defendant resides or carries on business or works for
gain and the cause of action, wholly or in part, arises.
12. Article 226 of the Constitution of India deals with the power of
the High Courts to issue certain writs. As per Clause (1),
notwithstanding anything in Article 32, every High Court shall have
10
power throughout the territories in relation to which it exercises
jurisdiction to issue to any person or authority including in
appropriate cases, any Government within those territories, directions,
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari or any of them,
for the enforcement of any of the rights conferred by Part III of the
Constitution of India i.e. fundamental rights and for any other
purpose. Clause (2) says by way of clarification that the power
conferred by Clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High
Court exercising jurisdiction in relation to the territories within which
the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority
or the residence of such person is not within those territories.
Therefore, even if the seat of the Government or authority or the
residence of any person is not within the territorial limits of the High
Court, yet such a High Court may exercise jurisdiction if a cause of
action, wholly or in part arises within the territorial limits of such High
Court.
13. The common thread running through the three provisions of law
which we have discussed above is cause of action. Therefore, it would
11
be apposite to briefly analyse what is cause of action before we proceed
ahead.
14. The expression cause of action has been defined by Mulla in his
treatise "Code of Civil Procedure" in the following manner:
Cause of action means every fact which, if traversed, it would be
necessary for the plaintiff to prove in order to support his right to a
judgment of the Court.
15. Supreme Court in State Bank of India Vs. Ranjan Chemicals
Limited1 delineated the elements of a cause of action as follows:
Firstly, the breach of duty owing by one person to another; and
secondly, the damage resulting to the other from the breach or the fact or
combination of facts which gives rise to a right to sue.
16. In AVM Sales Corporation Vs. Anuradha Chemicals Private
Limited2 Supreme Court defined cause of action as comprising a
bundle of facts which are relevant for determination of the lis between
the parties. Explaining the above expression in Nawal Kishore
Sharma Vs. Union of India3 Supreme Court has held that cause of
action is a bundle of facts which taken with the law applicable to them
gives the plaintiff a right to relief against the defendant.
1 (2007) 1 SCC 97
2 (2012) 2 SCC 315
3 (2014) 9 SCC 329
12
17. Again in the case of Indian Performing Rights Society Limited
Vs. Sanjay Dalia4 Supreme Court has held that cause of action is a
bundle of facts which is required to be proved to grant relief to the
plaintiff. Cause of action not only refers to the infringement but also
the material facts on which the right (alleged to be infringed) is
founded. It has to be decided in each case whether the cause of action
wholly or in part arises at a particular place.
18. Mr. B.S.Prasad, learned Advocate General for the State of
Telangana, has submitted a list of citations and submits therefrom
that the answer to the question posed by this Court would have to be
in the negative. According to him, going by the definition of cause of
action and the various judicial pronouncements it cannot be said that
merely because a securitization application under Section 17 of the
SARFAESI Act is filed before the Debts Recovery Tribunal - II,
Hyderabad or if any order is passed thereon by the said Tribunal, a
writ petition relatable to such adjudication or pendency would be
maintainable before this High Court. According to him, this High Court
would have no territorial jurisdiction to entertain such dispute which
would, in any event, be beyond the territorial limits of this High Court
4 (2015) 10 SCC 161
13
being within the State of Andhra Pradesh. Mr. Prasad has relied upon
the following decisions:
Lt. CoL. Khajoor Singh Vs. Union of India5,
Kusum Ingots & Alloys Limited Vs. Union of India6,
P.S.R.Krishna Vs. Union of India7,
Sterling Agro Industries Limited Vs. Union of India8,
Nawal Kishore Sharma (3 supra), and
Sri Balaji Water and Power Engineer Private Limited Vs. State
Bank of Sikkim9.
19. Mr. Venkatesh, learned counsel appearing for some of the
petitioners has submitted a memo of judgments and has placed
reliance on paragraph Nos.90 and 91 of the Supreme Court decision in
L. Chandra Kumar Vs. Union of India10, as well as on paragraph
Nos.19 and 20 of the recent decision of the Supreme Court in the case
of Union of India Vs. Alapan Bandyopadhyay11 . He has also placed
reliance on a Constitution Bench decision of the Supreme Court in
Bharat Aluminium Company Vs. Kaiser Aluminium Technical
Services Inc.,12 more particularly on paragraph No.96 thereof to
contend that both the High Court's i.e., High Court of Andhra Pradesh
5 AIR 1961 SC 532
6 (2004) 6 SCC 254
7 2006 SCC OnLine AP 843
8 2011 (124) DRJ 633
9 (2017) 3 GLR 234
10 (1997) 3 SCC 261
11 2022 SCC OnLine SC 16
12 (2012) 9 SCC 552
14
and High Court for the State of Telangana would have jurisdiction.
According to him, the High Court for the State of Telangana which has
supervisory jurisdiction over the Debts Recovery Tribunal - II,
Hyderabad as well as the Andhra Pradesh High Court within whose
territorial limits the cause of action had arisen or the secured creditor
is situate, would have the jurisdiction to entertain the writ petitions.
20. Supporting such submission, Mr. G.K.Deshpande, learned
counsel has placed reliance on a seven judges' decision of the Supreme
Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque13.
21. On the other hand, Mr. Ch.Srinivas, learned counsel appearing
for Bank of Baroda, in his submissions has tried to make a distinction
between two categories of cases. According to him, the first category
pertains to those cases where securitization application under Section
17 of the SARFAESI Act has been filed and the Debts Recovery
Tribunal - II, Hyderabad passes an order thereon. This category will
also include pending securitization applications as there is no
presiding officer in the said Tribunal. The second category would
comprise of such cases where no securitization application has been
filed. In the case of the former, perhaps, this Court may have the
territorial jurisdiction to entertain a writ petition filed under Article
13 AIR 1955 SC 233
15
226 of the Constitution of India. But in respect of the second category,
since no part of the cause of action has arisen within the territorial
limits of this Court, this Court would not have the territorial
jurisdiction to entertain such writ petition.
22. Such submission of Mr. Ch.Srinivas has been adopted by
Mr.A.Krishnam Raju, learned counsel appearing for State Bank of
India, as well as by Mr. Maruti Jadav, learned counsel also appearing
for State Bank of India, who in addition has referred to and relied upon
provisions of Section 17 (1A) of the SARFAESI Act, Section 19 of the
1993 Act and Section 20 (c) of CPC.
23. Submissions made by learned counsel for the parties as well as
by Mr. B.S. Prasad, learned Advocate General for the State of
Telangana have been duly considered.
24. Originally, Article 226 of the Constitution of India was as under:
"226. Power of High Courts to issue certain writs.---
(1) Notwithstanding anything in Article 32, every High Court
shall have power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories,
directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
16
(2) The power conferred on a High Court by clause (1) shall
not be in derogation of the power conferred on the Supreme Court
by clause (2) of Article 32."
25. Hari Vishnu Kamath (supra) is a seven judges bench decision of
the Supreme Court where one of the questions which arose for
consideration was whether High Courts had jurisdiction under Article
226 of the Constitution of India to issue writs against decisions of
Election Tribunals. After analyzing the provisions of Article 226 of the
Constitution of India as it then existed Supreme Court held that scope
of Article 226 of the Constitution of India is firstly that it confers on
the High Courts power to issue writs and directions, and secondly, it
defines the limits of that power. The limitation is that such a power
could be exercised over any person or authority within the territories
in relation to which the High Court so exercised its jurisdiction. The
emphasis was on the words "within the territory" and their significance
was that the jurisdiction to issue writ was co-extensive with the
territorial jurisdiction of the High Court. The reference was not to the
nature and composition of the Court or Tribunal but to the area within
which the power could be exercised. Supreme Court further opined
that Election Tribunals are subject to the superintendence of the High
Courts under Article 227 of the Constitution of India, such
superintendence being both judicial and administrative.
17
26. It was on that basis that contention has been advanced that
since Debts Recovery Tribunal-II, Hyderabad is subject to the
superintendence of this High Court under Article 227 of the
Constitution of India, a writ petition arising out of a securitization
application either decided or pending pertaining to the above four
districts of Andhra Pradesh or against an order passed therein would
be maintainable.
27. In Lt. Col. Khajoor Singh (supra), a seven judges bench of the
Supreme Court examined the concept of territorial jurisdiction under
Article 226 of the Constitution of India in the light of the question as to
whether the Government of India can be said to be located at one
place, namely, New Delhi. Article 226 of the Constitution of India as it
stood then conferred upon the High Court the power to issue a writ
against a person or authority or Government which are situated within
the territorial limits of such High Court. It was in that context that the
seven judges bench took the view that Article 226 as it stood did not
refer to accrual of cause of action and to the jurisdiction of the High
Court depending on the place where the cause of action accrued being
within its territorial jurisdiction. The seven judges bench opined that
there was no place for introduction of the concept of the place where
the impugned order had effect or of the concept of functioning of a
18
Government apart from the location of its office concerned or even of
the concept of cause of action. The bench opined that unless there are
clear and compelling reasons which cannot be denied, writ Court
cannot exercise jurisdiction under Article 226 of the Constitution
beyond its territorial limits. Therefore, the concept of cause of action
could not be introduced in Article 226.
28. The above interpretation caused undue hardship and
inconvenience to the litigants to invoke writ jurisdiction. As a result,
Article 226 of the Constitution of India was amended by the
Constitution (15th Amendment) Act, 1963 whereby Clause (1A) was
inserted in Article 226 thereby introducing the concept of cause of
action, wholly or in part, in Article 226. The statement of objects and
reasons appended to this amendment mentioned that under the
existing (unamended) Article 226 of the Constitution, the only High
Court which had jurisdiction with respect to the Central Government
was the then Punjab High Court. This caused considerable hardship to
litigants from distant places. It was, therefore, proposed to amend
Article 226 of the Constitution so that when any relief was sought
against any Government, authority or person for any action taken, the
High Court within whose jurisdiction the cause of action arose, may
19
also have the jurisdiction to issue appropriate directions or orders or
writs.
29. Clause (1A) so inserted was subsequently re-numbered as Clause
(2) by the Constitution (42nd Amendment Act) 1976. Amended Clause
(2) of Article 226 now reads as under:
"226. Power of High Courts to issue certain writs.---
(1) Notwithstanding anything in Article 32, every High Court shall
have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in appropriate
cases any Government, within those territories, directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised by
any High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or
the residence of such person is not within those territories.
(3)-(4) * * *"
30. Thus by way of the amendment, the basis of the earlier
pronouncements of the Supreme Court was removed and the concept
of cause of action was introduced.
31. In Kusum Ingots & Alloys Limited (supra), Supreme Court
explained as to what is meant by the expression cause of action and
observed that it implies a right to sue. Though not defined in any
statute, it has, however, been judicially interpreted to mean that every
fact which would be necessary for the plaintiff to prove, if traversed, in
20
order to support his right to the judgment of the Court. For every
action, there has to be a cause of action. If there is no cause of action,
the plaint or the writ petition would be rejected summarily. Thereafter
Supreme Court referred to Section 20 (c) CPC and observed that
though provisions of CPC would not apply to writ proceedings in view
of Section 141 CPC, the phraseology used in Section 20 (c) CPC and
Clause (2) of Article 226 of the Constitution of India being in pari
materia, the decisions rendered on interpretation of Section 20 (c) CPC
would apply to writ proceedings as well. Reference was made to the
earlier decision of the Supreme Court in Oil and Natural Gas
Commission Vs. Utpal Kumar Basu14 where it was held that the
question whether a High Court has territorial jurisdiction to entertain
a writ petition must be answered on the basis of averments made in
the writ petition, the truth or otherwise whereof being immaterial.
Mere fact that the Oil and Natural Gas Commission had sent fax
messages from Calcutta and received a reply thereto at Calcutta would
not constitute an integral part of the cause of action; all necessary
facts must form an integral part of the cause of action. Finally,
Supreme Court held that the facts pleaded in the writ petition must
have a nexus on the basis whereof a prayer can be granted. Those
facts which have nothing to do with the prayer made therein cannot be
14 (1994) 4 SCC 711
21
said to give rise to a cause of action which would confer jurisdiction on
the Court.
32. In paragraph No.27 of Kusum Ingots & Alloys Limited (supra)
on which much emphasis has been placed by Mr. Venkatesh, learned
counsel for some of the petitioners, it has been held that when an
order is passed by a Court or Tribunal or an executive authority
whether under provisions of a statute or otherwise, a part of cause of
action arises at that place. Further clarifying, it has been held that
when the original authority is constituted at one place and the
appellate authority is constituted at another place, a writ petition
would be maintainable in the High Court within whose jurisdiction it is
situated having regard to the fact that the order of the appellate
authority is also required to be set-aside, as the order of the original
authority merges with that of the appellate authority.
33. Referring to the decision in Lt. Col. Khajoor Singh (supra) it has
been held that in view of the insertion of Clause (2) in Article 226 of
the Constitution of India the position which now prevails is that if a
part of cause of action arises outside the jurisdiction of the High Court
it would still have the jurisdiction to issue a writ, thus the decision in
Lt. Col. Khajoor Singh (supra) now has no application.
22
34. However, in the concluding portion Supreme Court cautioned
that even if a small part of cause of action arises within the territorial
jurisdiction of the High Court, the same by itself may not be
considered to be a determinative factor compelling the High Court to
decide the matter on merit. In appropriate cases the High Court may
refuse to exercise its discretionary jurisdiction by invoking the doctrine
of forum conveniens.
35. P.S.R.Krishna (supra) is a division bench decision of the then
High Court of Andhra Pradesh. In that case a decision of the Central
Administrative Tribunal, Principal Bench at New Delhi was questioned
by filing writ petitions. After observing that question of jurisdiction
was required to be decided as a preliminary issue since it went to the
very root of the matter, it was held that until a clear finding is recorded
that the High Court has territorial jurisdiction no injunction should be
granted and the writ petition should be dismissed as not maintainable.
This Court referred to Clause (2) of Article 226 of the Constitution of
India and observed that location of the Principal Bench of the Central
Administrative Tribunal at New Delhi outside the territorial limits of
the then Andhra Pradesh High Court notwithstanding, even if a part of
the cause of action arises within its territorial limits, jurisdiction of the
Andhra Pradesh High Court and its power to issue a writ of certiorari
23
to quash the impugned order of the Tribunal, would not be ousted. It
was held that the test to determine territorial jurisdiction of a High
Court is not the location of the authority or the Tribunal or the
residence of the person to whom the writ is to be issued or even the
seat of the Government but, whether the cause of action, either wholly
or in part, has arisen within its territorial limits. Referring to the
amendment of Article 226 of the Constitution of India by which Clause
(IA) was inserted which subsequently became Clause (2), it was held
that the concept of cause of action was thereby introduced in Article
226 of the Constitution of India. Consequent thereto, even in cases
where the relief sought for was against an authority located outside its
territorial limits, the jurisdiction of the High Court to issue writs
against such an authority was not ousted provided that the cause of
action, even if it be in part, arose within its territorial limits. It was
held that the test to determine territorial jurisdiction of a High Court is
not the location of the authority or the Tribunal but the situs of the
cause of action whether wholly or in part.
36. Sterling Agro Industries Limited (supra), is a case decided by a
full bench of five judges of the Delhi High Court. Delhi High Court was
of the view that all necessary facts must form an integral part of the
cause of action. The fact which is neither material nor essential nor
24
integral would not constitute a part of cause of action within the
meaning of Clause (2) of Article 226 of the Constitution of India.
Clarifying further it was held that the entire bundle of facts pleaded
need not constitute a cause of action as what is necessary to be proved
before the petitioner can obtain a decree is material facts, which
expression is also known as integral facts. Therefore, in the context of
Clause (2) of Article 226 of the Constitution of India undisputably even
if a small fraction of the cause of action accrues within the territorial
limits of the High Court, the High Court will have jurisdiction in the
matter though the doctrine of forum conveniens may also have be
considered. Facts
which have no bearing with the lis or the dispute
involved do not give rise to a cause of action so as to confer territorial
jurisdiction on the Court concerned. Delhi High Court thereafter
analyzed the concept of forum conveniens. After referring to the
definition of forum conveniens in Black's Law Dictionary which denies
forum conveniens as the Court in which an action is most
appropriately brought, considering the best interests and convenience
of the parties and witnesses, Delhi High Court held as follows:-
31. The concept of forum conveniens fundamentally means that it
is obligatory on the part of the Court to see the convenience of all the
parties before it. The convenience in its ambit and sweep would include
the existence of more appropriate forum, expenses involved, the law
relating to the lis, verification of certain facts which are necessitous for
just adjudication of the controversy and such other ancillary aspects. The
balance of convenience is also to be taken note of. Be it noted, the Apex
Court has clearly stated in the cases of Kusum Ingots, Mosaraf
Hossain Khan and Ambica Industries about the applicability of the
doctrine of forum conveniens while opining that arising of a part of cause
of action would entitle the High Court to entertain the writ petition as
maintainable.
32. The principle of forum conveniens in its ambit and sweep
encapsulates the concept that a cause of action arising within the
jurisdiction of the Court would not itself constitute to be the determining
factor compelling the Court to entertain the matter. While exercising
jurisdiction under Articles 226 and 227 of the Constitution of India, the
Court cannot be totally oblivious of the concept of forum conveniens. The
Full Bench in New India Assurance Co. Ltd. has not kept in view the
concept of forum conveniens and has expressed the view that if the
appellate authority who has passed the order is situated in Delhi, then
the Delhi High Court should be treated as the forum conveniens. We are
unable to subscribe to the said view".
37. Thereafter Delhi High Court recorded its conclusions as under:-
"33. In view of the aforesaid analysis, we are inclined to
modify the findings and conclusions of the Full Bench in New India
Assurance Company Limited (supra) and proceed to state our
conclusions in seriatim as follows:
(a) The finding recorded by the Full Bench that the sole cause of action
emerges at the place or location where the tribunal/appellate
authority/revisional authority is situate and the said High Court (i.e.,
Delhi High Court) cannot decline to entertain the writ petition as that
would amount to failure of the duty of the Court cannot be accepted
inasmuch as such a finding is totally based on the situs of the
tribunal/appellate authority/revisional authority totally ignoring the
concept of forum conveniens.
(b) Even if a miniscule part of cause of action arises within the jurisdiction of
this Court, a writ petition would be maintainable before this Court,
however, the cause of action has to be understood as per the ratio laid
down in the case of Alchemist Ltd. (supra).
(c) An order of the appellate authority constitutes a part of cause of action to
make the writ petition maintainable in the High Court within whose
jurisdiction the appellate authority is situated. Yet, the same may not be
the singular factor to compel the High Court to decide the matter on
merits. The High Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum conveniens.
(d) The conclusion that where the appellate or revisional authority is located
constitutes the place of forum conveniens as stated in absolute terms by
the Full Bench is not correct as it will vary from case to case and depend
upon the lis in question.
(e) The finding that the court may refuse to exercise jurisdiction under Article
226 if only the jurisdiction is invoked in a mala fide manner is too
restricted/constricted as the exercise of power restricted to the ground of
mala fide alone.
(f) While entertaining a writ petition, the doctrine of forum conveniens and
the nature of cause of action are required to be scrutinized by the High
Court depending upon the factual matrix of each case in view of what has
been stated in Ambica Industries (supra) and Adani Exports Ltd.
(supra).
(g) The conclusion of the earlier decision of the Full Bench in New India
Assurance Company Limited (supra) "that since the original order
merges into the appellate order, the place where the appellate authority is
located is also forum conveniens" is not correct.
(h) Any decision of this Court contrary to the conclusions enumerated
hereinabove stands overruled".
38. Thus, according to the Delhi High Court place or location of the
Tribunal/Appellate Authority/Revisional Authority cannot be the sole
basis for conferring jurisdiction on the High Court to entertain the
writ petition. Of course, even if a miniscule part of the cause of action
arises within the territorial limits of the High Court, a writ petition
would be maintainable before that High Court. That apart, while
entertaining a writ petition, the doctrine of forum conveniens and the
nature of cause of action are required to be scrutinized by the High
Court.
39 In Nawal Kishore Sharma (supra) Supreme Court analyzed the
expression cause of action as appearing in Clause (2) of Article 226 of
the Constitution of India and held that cause of action is a bundle of
facts which is necessary for the plaintiff to prove in the suit before he
can succeed. Reference was made to its earlier decisions in Utpal
Kumar Basu (supra), Kusum Ingots & Alloys Limited (supra) and in
Om Prakash Srivastava Vs. Union of India15 and held that the
question whether or not cause of action wholly or in part for filing a
writ petition has arisen within the territorial limits of any High Court
has to be decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution of India. In order to
maintain a writ petition, the petitioner has to establish that a legal
right claimed by him is prima facie either been infringed or is
threatened to be infringed by the respondent within the territorial
limits of the Court's jurisdiction. It was thus asserted that in order to
maintain a writ petition the petitioner has to establish that a legal
right claimed by him has been infringed by the respondents within
the territorial limits of the Court's jurisdiction and such infringement
may take place by causing him actual injury or threat thereof.
Paragraph No.7 in Om Prakash Srivastava (supra) which has been
quoted in paragraph No.14 of this judgment being relevant is
extracted as under:
"7. The question whether or not cause of action wholly or in part
for filing a writ petition has arisen within the territorial limits of any High
Court has to be decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution. In order to maintain a
writ petition, a writ petitioner has to establish that a legal right claimed
by him has prima facie either been infringed or is threatened to be
15 (2006) 6 SCC 207
infringed by the respondent within the territorial limits of the Court's
jurisdiction and such infringement may take place by causing him actual
injury or threat thereof".
40. Similar issue cropped up before the Gauhati High Court in
Shree Balaji Water and Power Engineer (Pvt.) Limited (supra). In
that case both the borrower and secured creditor were from the State
of Sikkim. The cause of action in the form of loan transaction had
taken place in the State of Sikkim. However, the Debts Recovery
Tribunal competent to deal with the securitization application under
Section 17 of the SARFAESI Act was located in Guwahati in the State
of Assam. Against the decision passed by the Debts Recovery
Tribunal, Guwahati, the related writ petition was filed before the
Gauhati High Court. After referring to various case laws a single
bench of the Gauhati High Court held as follows:
"15. In the present case, the proceeding have originated from the
issuance of the loan by the State Bank of Sikkim to the loanee, who are
both residents of Sikkim. The authority whose orders and decisions are
being adjudicated is a resident of Sikkim. As such, the High Court, within
whose jurisdiction the proceeding has originated from would have
territorial jurisdiction to entertain the matter.
16. In view of the fact that no cause of action exists in the State of
Assam and as the cause of action arose in the jurisdiction of the Sikkim
High Court and keeping in view the decision of the Apex Court in the case
of Ambica Industries (supra) and Nawal Kishore Sharma (supra), this
court holds that this court is not the proper Court to decide the issue at
hand. Accordingly, the present writ petition, being not maintainable, the
same is dismissed. The petitioner is at liberty to approach the Sikkim
High Court, if so advised, as the Sikkim High Court is the proper forum to
entertain a writ petition keeping in mind the facts of the case and the
judgments of the hon'ble Supreme Court".
41. The view of the Gauhati High Court is that the proceedings
having originated from the issue of loan by the State Bank of Sikkim
to the loanee who are both residents of Sikkim and the authority
whose decision was being adjudicated upon was a resident of Sikkim,
therefore the High Court within whose territorial jurisdiction the
proceeding had originated would have the territorial jurisdiction to
entertain the matter. Thus, it was held that as no cause of action
arose in the State of Assam and as the cause of action arose within
the jurisdiction of the Sikkim High Court, the Gauhati High Court
was not the proper Court to adjudicate the matter, Sikkim High Court
being the proper Court to entertain the writ petition. Implicit in what
was being held is that merely because adjudication by the Debts
Recovery Tribunal was at Guwahati would not by itself confer
territorial jurisdiction on the Gauhati High Court to entertain the
related writ petition relating to the SARFAESI Act.
42. As already noticed above, learned counsel for the petitioners,
more particularly Mr. Venkatesh, had placed heavy reliance on
paragraph No.96 of Bharath Aluminium Company (supra). That was
a case arising out of the Arbitration and Conciliation Act, 1996. One
of the issues which came up for consideration before the constitution
bench was which High Court would have the territorial jurisdiction to
entertain challenge to arbitration proceedings. This was in context of
Section 2 (i) (e) of the Arbitration and Conciliation Act, 1996 which
defines 'Court' and Section 20 of the said Act which provides for 'place
of arbitration'. It was in that context Supreme Court held as follows:
"96. Section 2(1)(e) of the Arbitration Act, 1996 reads as under:
2. Definitions.---(1) In this Part, unless the context otherwise requires -
(a)-(d) * * * *
(e) "Court" means the Principal Civil Court of original jurisdiction in a
district, and includes the High Court in exercise of its ordinary original
civil jurisdiction, having jurisdiction to decide the questions forming the
subject-matter of the arbitration if the same had been the subject-matter
of a suit, but does not include any civil court of a grade inferior to such
Principal Civil Court, or any Court of Small Causes;"
We are of the opinion, the term "subject-matter of the arbitration" cannot
be confused with "subject-matter of the suit". The term "subject-matter" in
Section 2(1)(e) is confined to Part I. It has a reference and connection with
the process of dispute resolution. Its purpose is to identify the courts
having supervisory control over the arbitration proceedings. Hence, it
refers to a court which would essentially be a court of the seat of the
arbitration process. In our opinion, the provision in Section 2(1)(e) has to
be construed keeping in view the provisions in Section 20 which give
recognition to party autonomy. Accepting the narrow construction as
projected by the learned counsel for the appellants would, in fact, render
Section 20 nugatory. In our view, the legislature has intentionally given
jurisdiction to two courts i.e. the court which would have jurisdiction
where the cause of action is located and the courts where the arbitration
takes place. This was necessary as on many occasions the agreement
may provide for a seat of arbitration at a place which would be neutral to
both the parties. Therefore, the courts where the arbitration takes place
would be required to exercise supervisory control over the arbitral
process. For example, if the arbitration is held in Delhi, where neither of
the parties are from Delhi, (Delhi having been chosen as a neutral place
as between a party from Mumbai and the other from Kolkata) and the
tribunal sitting in Delhi passes an interim order under Section 17 of the
Arbitration Act, 1996, the appeal against such an interim order under
Section 37 must lie to the courts of Delhi being the courts having
supervisory jurisdiction over the arbitration proceedings and the tribunal.
This would be irrespective of the fact that the obligations to be performed
under the contract were to be performed either at Mumbai or at Kolkata,
and only arbitration is to take place in Delhi. In such circumstances, both
the courts would have jurisdiction, i.e., the court within whose jurisdiction
the subject-matter of the suit is situated and the courts within the
jurisdiction of which the dispute resolution, i.e., arbitration is located".
43. Thus, what the Supreme Court said in the above case is that in
such circumstances both the Courts would have the jurisdiction to
adjudicate i.e., the Court within whose jurisdiction subject matter of
the suit is situated and the Courts within the jurisdiction of which
arbitration is located. While coming to the above conclusion,
Supreme Court gave an example of arbitration being held at Delhi
though neither of the parties were from Delhi. The arbitral tribunal
sitting at Delhi passes certain orders. Against such orders appeal
would lie to the Courts in Delhi being the Courts having supervisory
jurisdiction. This would be irrespective of the fact that the obligations
to be performed under the contract giving rise to arbitration were to
be performed in some other place and only arbitration takes place in
Delhi. It was in that context Supreme Court held that both the
Courts would have the jurisdiction. We are afraid the above decision
would not be of much assistance to the petitioners, both contextually
and factually.
44. In L. Chandra Kumar (supra) the challenge before the seven
judge bench of the Supreme Court was the ouster of jurisdiction of
the High Courts under Articles 226/227 of the Constitution of India
in respect of orders passed by Central Administrative Tribunal
constituted under the Administrative Tribunals Act, 1985. Clarifying
that power of judicial review is a basic feature of the Constitution of
India, Supreme Court held that all decisions of Tribunals whether
created pursuant to Article 323-A or Article 323-B of the Constitution
would be subject to the High Courts writ jurisdiction under Articles
226/227 of the Constitution before a division bench of the High Court
within whose territorial jurisdiction the particular Tribunal is
situated. It was held thus:
"90. We may first address the issue of exclusion of the power of judicial
review of the High Courts. We have already held that in respect of the
power of judicial review, the jurisdiction of the High Courts under Article
226/227 cannot wholly be excluded. It has been contended before us that
the Tribunals should not be allowed to adjudicate upon matters where the
vires of legislations is questioned, and that they should restrict
themselves to handling matters where constitutional issues are not
raised. We cannot bring ourselves to agree to this proposition as that may
result in splitting up proceedings and may cause avoidable delay. If such
a view were to be adopted, it would be open for litigants to raise
constitutional issues, many of which may be quite frivolous, to directly
approach the High Courts and thus subvert the jurisdiction of the
Tribunals. Moreover, even in these special branches of law, some areas
do involve the consideration of constitutional questions on a regular basis;
for instance, in service law matters, a large majority of cases involve an
interpretation of Articles 14, 15 and 16 of the Constitution. To hold that
the Tribunals have no power to handle matters involving constitutional
issues would not serve the purpose for which they were constituted. On
the other hand, to hold that all such decisions will be subject to the
jurisdiction of the High Courts under Articles 226/227 of the Constitution
before a Division Bench of the High Court within whose territorial
jurisdiction the Tribunal concerned falls will serve two purposes. While
saving the power of judicial review of legislative action vested in the High
Courts under Article 226/227 of the Constitution, it will ensure that
frivolous claims are filtered out through the process of adjudication in the
Tribunal. The High Court will also have the benefit of a reasoned decision
on merits which will be of use to it in finally deciding the matter.
91. It has also been contended before us that even in dealing with cases
which are properly before the Tribunals, the manner in which justice is
dispensed by them leaves much to be desired. Moreover, the remedy
provided in the parent statutes, by way of an appeal by special leave
under Article 136 of the Constitution, is too costly and inaccessible for it to
be real and effective. Furthermore, the result of providing such a remedy
is that the docket of the Supreme Court is crowded with decisions of
Tribunals that are challenged on relatively trivial grounds and it is forced
to perform the role of a first appellate court. We have already emphasised
the necessity for ensuring that the High Courts are able to exercise
judicial superintendence over the decisions of Tribunals under Article 227
of the Constitution. In R.K. Jain's case, after taking note of these facts, it
was suggested that the possibility of an appeal from the Tribunal on
questions of law to a Division Bench of a High Court within whose
territorial jurisdiction the Tribunal falls, be pursued. It appears that no
follow-up action has been taken pursuant to the suggestion. Such a
measure would have improved matters considerably. Having regard to
both the afore-stated contentions, we hold that all decisions of Tribunals,
whether created pursuant to Article 323A or Article 323B of the
Constitution, will be subject to the High Court's writ jurisdiction under
Articles 226/227 of the Constitution, before a Division Bench of the High
Court within whose territorial jurisdiction the particular Tribunal falls".
45. Here also the decision of the Supreme Court would have to be
understood in the context in which it was rendered. Initially, under
the Administrative Tribunals Act, 1985 decision of the Central
Administrative Tribunal was made directly appealable to the Supreme
Court excluding jurisdiction of the High Courts under Articles
226/227 of the Constitution of India. It was in such circumstances,
while interfering with the enactment in so far exclusion of jurisdiction
of the High Courts under Articles 226/227 of the Constitution of India
was concerned, Supreme Court provided that challenge to a decision
of the Central Administrative Tribunal under Articles 226/227 of the
Constitution of India would be before a division bench of the High
Court, within whose territorial jurisdiction that particular Tribunal
falls. As has been explained by this Court in P.S.R.Krishna (supra)
the scope of Article 226 (2) of the Constitution of India and what
constitutes territorial jurisdiction thereunder was not an issue before
the Supreme Court in L. Chandra Kumar (supra). Issue before the
Supreme Court was exclusion of jurisdiction of the High Courts under
Articles 226/227 of the Constitution vis-à-vis orders and decisions of
the Central Administrative Tribunals constituted under the
Administrative Tribunals Act, 1985. In that context, Supreme Court
held that power of judicial review of the High Courts under Articles
226/227 of the Constitution of India is part of the basic structure of
the Constitution and such a power cannot be taken away by a
statute. Accordingly, Section 28 of the Administrative Tribunals Act,
1985 was struck down. Therefore, the finding recorded in paragraph
No.91 in L.Chandra Kumar (supra) that all decisions of the Tribunals
will be subject to the High Court's writ jurisdiction under Articles
226/227 of the Constitution of India before a division bench of the
High Court within whose territorial jurisdiction the particular
Tribunal falls cannot be stretched and applied to analyze cause of
action vis-à-vis territorial jurisdiction of the High Court in a case
arising out of the SARFAESI Act. In our view L. Chandra Kumar
(supra) does not lay down the proposition that the High Court under
whose jurisdiction the Debts Recovery Tribunal is situated would be
the proper High Court to entertain a writ petition de-hors the cause of
action in the context of the SARFAESI Act.
46. Similar is the position in respect of Alapan Bandyopadhyay
(supra) which also relied heavily on L.Chandra Kumar (supra).
Paragraph No.20 of Alapan Bandyopadhyay (supra) on which much
reliance was placed by learned counsel for the petitioners reads as
under:
"20. When once a Constitution Bench of this court declared the law
that "all decisions of Tribunals created under Article 323A and Article
323B of the Constitution will be subject to the scrutiny before a Division
Bench of the High Court within whose jurisdiction the concerned Tribunal
falls", it is impermissible to make any further construction on the said
issue. The expression "all decisions of these Tribunals" used by the
Constitution Bench will cover and take within its sweep orders passed on
applications or otherwise in the matter of transfer of Original Applications
from one Bench of the Tribunal to another Bench of the Tribunal in
exercise of the power under Section 25 of the Act. In other words, any
decision of such a Tribunal, including the one passed under Section 25 of
the Act could be subjected to scrutiny only before a Division Bench of a
High Court within whose jurisdiction the Tribunal concerned falls. This
unambiguous exposition of law has to be followed scrupulously while
deciding the jurisdictional High Court for the purpose of bringing in
challenge against an order of transfer of an Original Application from one
bench of Tribunal to another bench in the invocation of Section 25 of the
Act. The law thus declared by the Constitution Bench cannot be revisited
by a Bench of lesser quorum or for that matter by the High Courts by
looking into the bundle of facts to ascertain whether they would confer
territorial jurisdiction to the High Court within the ambit of Article 226 (2)
of the Constitution. We are of the considered view that taking another
view would undoubtedly result in indefiniteness and multiplicity in the
matter of jurisdiction in situations when a decision passed under Section
25 of the Act is to be called in question especially in cases involving
multiple parties residing within the jurisdiction of different High Courts
albeit aggrieved by one common order passed by the Chairman at the
Principal Bench at New Delhi".
47. Explaining L. Chandra Kumar (supra), Supreme Court in
Alapan Bandyopadhyay (supra) held that the Tribunal would mean
that Tribunal which is under the jurisdiction of the High court and all
decisions of the Tribunal would mean orders passed on applications
or otherwise in the matter of transfer of original application from one
bench of the Tribunal to another bench of the Tribunal in exercise of
power under Section 25 of the Administrative Tribunals Act, 1985. In
other words, any decision of such a Tribunal including the one passed
under Section 25 of the Administrative Tribunals Act, 1985 could be
subjected to scrutiny only before the Division Bench of the High Court
within whose jurisdiction the Tribunal concerned falls, in this case
the Tribunal at New Delhi. In that case, writ petition was filed in the
Calcutta High Court challenging the order passed by the Chairman of
the Principal Bench of Central Administrative Tribunal at New Delhi
under Section 25 of the Administrative Tribunals Act, 1985
transferring the original application filed before the Central
Administrative Tribunal, Calcutta Bench to the Central Administrative
Tribunal, Principal Bench at New Delhi. Principal Bench of the
Central Administrative Tribunal, New Delhi falls within the territorial
jurisdiction of the Delhi High Court. Therefore, the decision of the
Supreme Court in Alapan Bandyopadhyay (supra) would have to be
understood in the context of what was the issue before the Supreme
Court in that case. We are afraid decision of the Supreme Court in
Alapan Bandyopadhyay (supra) rendered in the above context cannot
also be of much assistance to the petitioners.
48. That being the position and having regard to Section 17 (1) (A) of
the SARFAESI Act, we are of the un-hesitant view that since the cause
of action arises in the four districts of Andhra Pradesh viz.
Ananthapur, Chitoor, Cuddapah and Kurnool where the borrowers,
secured assets, and the secured creditors are located as well as the
loan transaction had taken place, it is the High Court for the State of
Andhra Pradesh which will have the jurisdiction in matters arising
out of the SARFAESI Act in respect of the above four districts. In the
event no securitization application is filed under Section 17 of the
SARFAESI Act, the position becomes very simple. The parties being
within the State of Andhra Pradesh and the cause of action also
arising within that State, High Court for the State of Telangana at
Hyderabad would have no territorial jurisdiction to entertain any writ
petition relating thereto. Even if a securitization application under
Section 17 of the SARFAESI Act is filed before the Debts Recovery
Tribunal-II, Hyderabad or any order is passed by the said Tribunal on
such application, then also the High Court for the State of Telangana
at Hyderabad would not have the territorial jurisdiction to entertain
any writ petition relating to such proceedings before the Debts
Recovery Tribunal-II, Hyderabad though the said Tribunal is within
the jurisdiction of this Court. This is because filing of securitization
application before the Debts Recovery Tribunal-II, Hyderabad or
passing of any order by the said Tribunal on such securitization
application would not give rise to any additional cause of action to the
cause of action already accrued. As was held by the Supreme Court
in Om Prakash Srivastava (supra) and re-stated by the Supreme
Court in Nawal Kishore Sharma (supra) in order to maintain a writ
petition, the petitioner has prima facie to establish that a legal right
claimed by him has either been infringed or is threatened to be
infringed by the respondent within the territorial limits of the High
Court's jurisdiction. Such legal right or the infringement thereof has
taken place within the State of Andhra Pradesh. By filing
securitization application or passing of order(s) there on by the Debts
Recovery Tribunal-II, Hyderabad no legal right of the petitioner can be
said to have been infringed by the respondent within the territorial
limits of this High Court.
49. In view of the above, we answer the question framed by us in the
Order dated 03.12.2021 in the negative. Consequently, we hold that
any order or proceeding of the Debts Recovery Tribunal-II, Hyderabad
pertaining to issues arising from the State of Andhra Pradesh
including the above four districts would not confer jurisdiction on the
High Court for the State of Telangana at Hyderabad to adjudicate.
50. Accordingly, all the writ petitions are dismissed as being not
maintainable before this Court. However, petitioners are at liberty to
approach the appropriate forum for redressal of grievance. Interim
orders passed by this Court would continue to hold the field for a
period of 30 days from today to enable the petitioners to approach the
appropriate forum. However, there shall be no order as to costs.
51. Miscellaneous petitions, if any, pending in all these writ
petitions shall also stand dismissed.
____________________
UJJAL BHUYAN, CJ
________________________________
A.VENKATESHWARA REDDY, J
DATE:01-07-2022
KVSN/VRKS
Note: Lr copy be marked
(By order)
pln
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
W.P.Nos.29918, 29928, 31871 and 32730 of 2021
And
W.P.Nos.1980, 3396, 3415, 3451, 7516 and 811 of 2022
COMMON JUDGMENT AND ORDER:
(Per Hon'ble the Chief Justice Ujjal Bhuyan)
Date: 01.07.2022
KVSN/VRKS
