NARAYAN SHUKLA,AMRENDRA NATH TRIPATHI - (1.) LEARNED counsel for the petitioner, Mr Zubair Hasan, learned advocate as intervener on behalf of Mr Shivam Mishra, who is grand-son of borrower and has moved the application for impleadment as opposite party as well as Mr N.K. Seth, Senior Advocate assisted by Mr Vijay Krishna Srivastava as well as Mr Ashish Chaturvedi, learned counsel for the Bank. Through the instant writ petition, the petitioner has challenged the order dated 10.5.2012, passed by the Debts Recovery Tribunal in S.A. No. 182 of 2008 on several grounds. The petitioner disclosed the status as co-owner of the house. It is further stated that he is neither borrower nor guarantor in the transaction of loan, but under the proceeding of recovery the whole house of which he alleged to be co-tenant has been put for auction.
(2.) LEARNED counsel for the petitioner submits that for the default of the borrower in making payment of the outstanding dues of the Bank, the petitioner should not be put to suffer by putting his share of the house under auction. Along with the aforesaid submissions, the learned counsel for the petitioner raised several arguments on merit. However, before proceeding to deal with the case on merit, Mr N.K. Seth, learned Senior Advocate appearing for the Bank raised objection against the maintainability of the writ petition under Article 226 of the Constitution of India. He submitted that this is the order, passed by the Debts Recovery Tribunal in exercise of powers provided under Section 17 of the Secularisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( here-in-after referred to as Act). The order passed under Section 17 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (here-in-after referred to as the Act) is appealable to the Debts Recovery? Appellate Tribunal under Section 18 of the Act. He also placed reliance upon the provisions of Section 18 of the Act, which is extracted below, Appeal to Appellate Tribunal (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal ( under section 17, may prefer an appeal along with such fee, as may be prescribed) to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. ( Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower) (Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent of debt referred to in the second proviso.) (2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be ,dispose of the appeal in accordance with the provisions of the Recovery Debts Due to Banks and Financial Institutions Act,1993 (51 of 1993) and rules made thereunder. In the light of the aforesaid provisions he submitted that filing of an appeal before the Appellate Tribunal under Section 18 of the Act against the order of Debts Recovery Tribunal is a statutory remedy which cannot be ignored by this Court. In support of his submission he also cited a decision of Hon'ble the Supreme Court rendered in the case of United Bank of India Vs Satyawati Tondon and others (2010) 8 Supreme Court Cases 110.
(3.) IN the aforesaid case, Hon'ble the Supreme Court, dealing with the provisions of Sections 13(4),14,17 and 18 of the Act along with the scope of this Court under Article 226 of the Constitution of India in such a matter, has clearly expressed? the opinion that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution of India, if an effective remedy is available to the aggrieved person and this Rules applies with the greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. It is worth to reproduce paragraphs 43,44,45 and 46 of the judgment of Hon'ble Supreme Court as under:- "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 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 legislation enacted? by Parliament and State? Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also? envisages constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the 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 any person or authority, including? an appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the eUnited Bank of India Vs Satyawati Tondon and others nforcement 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 for 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 cared out in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila? Parishad( AIR 1969 SC 556), Whirlpool Corpn. Vs. Registrar of Trade Marks ( 1998) 8SCC1 and Harbanslal Sahina Vs. Indian Oil Corpn. Ltd. (2003) 2SCC107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest pass an appropriate interim order. ;