G.P Mittal, J.:— Petitioner Bijender Kumar Gupta by virtue of this writ petition under Article 226 and 227 of the Constitution of India prays for quashing of the orders dated 02.11.2011 and 01.03.2012 passed by the learned Additional Chief Metropolitan Magistrate (ACMM) in Complaint Case No. 2098/2/2011 whereby in pursuance of the application under Section 14(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), the Receiver was directed to take into possession the land measuring 16 Biswas out of Khasra No. 59/17, situated in the Revenue Estate of Village Mundka, Delhi-41 and land measuring 1 Bigha 4 Biswas out of Khasra No. 59/17(1-04) situated in the Revenue Estate of Village Mundka, Delhi-41 and the objections preferred by the Petitioner were dismissed.
2. One Anil Kumar, proprietor of Anil Trading Company had mortgaged the earlier stated land in favour of the Corporation Bank(Respondent No. 1) by depositing its title deeds on 10.03.2000 Letters of equitable mortgage were signed by the said Anil Kumar on 02.05.2001 for the purpose of securing the cash credit limit of Rs. 25 lakhs granted in his favour. Prem Prakash, Sunil Dutt and Ashok Kumar stood as guarantors for repayment of the said loan. Anil Kumar defaulted in repayment of the loan. Respondent No. 1, therefore, preferred an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993(DRT Act) before the Debt Recovery Tribunal(DRT). Subsequently, the application under section 13 of sarfaesi act was moved by Respondent No. 1 to take possession of the mortgaged land.
3. In the instant writ petition, the case of the Petitioner is that the land in question is an agricultural land and the provisions of SARFAESI Act are not attracted to such land. It is averred that the Petitioner is bona fide purchaser of the said land. Before purchasing the land in question on 11.10.2005, the Petitioner made inquiries from the Revenue Department as also the Office of the Sub-Registrar (but he could not find any interest having been created in respect of the land). On moving of an application by the Petitioner, the land in question was also mutated in his favour. The Petitioner relies on the definition of ‘land’ as given under Section 3(13) of the Delhi Land Reforms Act, 1954(DLR Act). It is thus stated that the action of the learned ACMM in appointing a Receiver for taking possession of the Petitioner's land and then dismissing his application for directions is illegal and without application of judicial mind.
4. Respondent No. 1 filed reply to the present writ petition supported by an affidavit of its Manager. The sum and substance of its case is that on 20.01.2005, an application under section 17 of drt act was filed before the DRT for recovery of Rs. 31,31,990.65P against Anil Kumar and the guarantors. In the said application, all the Defendants including the principal guarantor (Anil Kumar) were proceeded ex parte. A sum of Rs. 78,73,616/- inclusive of interest was due against the borrowers and the guarantors upto 30.09.2012 The order dated 02.11.2011 was passed by the learned ACMM under Section 14(2) of SARFAESI Act. Section 17 of SARFAESI Act provides for an appeal. Thus, in view of an alternative efficacious remedy available, a writ petition is not maintainable. It is submitted that the sale deed annexed with the petition does not relate to the property in question.
5. It is averred that the land in question cannot be said to be an agricultural land as no agricultural activity is being carried out on the land in question. Rather, a banquet hall has been constructed over the land and commercial activity is being carried thereon. It is also stated that Anil Kumar could not have sold the property in question on 11.10.2005 to the Petitioner as Respondent No. 1 had already moved the Court of the learned ACMM on 20.01.2005 for taking possession of the land. Hence, the sale would be hit by the doctrine of lis pendens. It is urged by the learned counsel for Respondent No. 1 that a letter dated 10.12.2011 was written by Anil Kumar to them whereby he informed the bank that since the original title deeds were lying with the bank, the same was informed to the purchaser, that is, the Petitioner herein and sale agreement was signed between him(Anil Kumar) and the purchaser of the property whereby the purchaser (the Petitioner) had agreed to clear the outstanding amount due to the bank.
6. The Petitioner did not file any rejoinder affidavit to controvert the averments made in the letter dated 10.12.2011 that the subsequent purchaser was informed to clear the outstanding dues of the bank or that a banquet hall was running on the land in question.
7. The following issues arise for determination in the instant writ petition:
(i) Whether the land in question can be said to be an agricultural land so as to exclude the applicability of the SARFAESI Act?
(ii) Whether the writ petition can be entertained in the face of alternative remedy provided under Sections 17 and 18 of the SARFAESI Act?
8. There is no gainsaying that Section 31(i) of the SARFAESI Act makes the provisions of this Act inapplicable on any security or interest created in an agricultural land. The question for consideration is thus, whether any land on which a banquet hall has been built would still retain the character of an ‘agricultural land’. The learned counsel for the Petitioner relies on a Division Bench judgment of this Court in Bihari Lal & Others…Petitioners v. Union Of India, Etc.…S, AIR 1979 Delhi 84 to contend that any land which could be put to agriculture will continue to be an agricultural land as envisaged under section 31 of the sarfaesi act. On the other hand, the learned counsel for Respondent No. 1 relied on Ram Lubbaya Kapoor v. T.R Chawala, 1986 (10) DRJ 359; Nilima Gupta v. Yogesh Saroha & Ors., 156 (2009) DLT 129; N.B Singh HUFI v. Perfexa Solutions Pvt. Ltd., (IA Nos. 13634/2007 & 3114/2009 in CS(OS).2311/2006) decided on 29.05.2009 and Anand T. Datwani v. Geeti Bhagat Datwani, (CS(OS).758/2008) decided on 30.04.2013 to urge that a land ceases to be an agricultural land if it is not being used for agricultural purposes.
9. In Bihari Lal, the question before the Division Bench was whether the contended land was an areble land or a waste land. Relying on Raja Anand Brahma Shah v. State of Uttar Pradesh, AIR 1967 SC 1081, the Division Bench held that the land was undoubtedly being used for cultivation at one time and therefore, was capable of being cultivated. Thus, the Division Bench concluded that any land, whether it is actually being cultivated or not is areble land. Under the provisions of Section 17 of the Land Acquisition Act, 1894 (LAC Act) as it existed at the relevant time, the normal procedure of acquisition after hearing objections etc. under Sections 5A, 6 and 9 could be dispensed with in certain circumstances in respect of acquisition of areble as well as waste land. Thus, Bihari Lal relied upon by the learned counsel for the Petitioner does not deal with the present controversy, that is, whether the land in question is actually an agricultural land as envisaged under section 31(i) of sarfaesi act. Rather, the answer to the same is found in Ram Lubbaya Kapoor relied upon by Respondent No. 1, which squarely lays down that if any land has been put to non-agricultural use by carving out plots etc., it shall cease to be a ‘land’ as defined under Section 3(13) of DLR Act.
10. In Anand J. Datwani, this issue was dealt with at great length by the learned Single Judge of this Court. It would be appropriate to extract paras 18 to 22 and 26 hereunder:
“18. In Ram Lubbaya Kapoor's case (supra) this court has held that any land before it can be termed “land” for the purpose of the Delhi Land Reforms Act, 1954 must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if it is not used for the said purposes, it ceased to be a land for the purposes of the Act and the provisions thereof will no longer apply and the remedy of the aggrieved party, if any, would be under the general law of the land. Similar view was taken by this Court in Narain Singh v. Financial Commissioner, 152 (2008) DLT 167.
19. In Nilima Gupta's case (supra), it was held by the learned single judge of this court that:
“The Delhi Land Reforms Act was not meant to decide the Civil Disputes of unauthorized colonies, which emerged on agricultural land. The hard realty of today is that though large chunks of land stand in the revenue record as ‘khasra numbers’ but in fact the land has been converted into unauthorized/authorized colonies, where people have either built houses or have plots and civil disputes are arising day in and day out in respect of these plots. Sometimes, plots are sold twice, sometimes there are disputes regarding possession of plots, sometimes there are disputes regarding encroachment, sometimes there are disputes regarding invalid/valid sale of the plots. The Legislature while framing the Delhi Land Reforms Act had not envisaged these kinds of disputes to be referred to the Revenue Authorities. A perusal of chart given in Schedule I pertaining to Section 185 itself shows that all disputes which are envisaged by the Delhi Land Reforms Act to be decided by the Revenue Assistant or Deputy Commissioner are those, which pertain to agricultural land and they are not those disputes which arise when agricultural land is converted into unauthorized colonies or authorized colonies. The Courts cannot be divorced from the ground realities and live in an imaginary world of jurisdiction. Once the agricultural land loses its basic character of ‘agricultural land’ and changes hands several times and gets converted into an authorized/unauthorized colony by dividing it into plots, the disputes of plot-holders are not those, which can be decided by the Revenue Authorities and these disputes have to be decided by the Civil Courts.”
20. In N.B Singh's case (Supra), the defendant-company had taken the premises on lease for the residence of its managing director at monthly rent of Rs. 1,60,000. The learned single judge held that a property ceases to be an agricultural property if it is not used for agricultural purposes and the defendant is estopped from contending that the suit property is an agricultural land covered by the Delhi Land Reforms Act. It was further contended that the description of the plaintiff as Bhumidar in revenue records is of no consequence.
21. After having heard both the parties and perusing the judgments being relied upon by them, I am of the view that the provisions of the Delhi Land Reforms Act, 1954 shall not apply to a land which at the outset was an agricultural land but is no longer being used for the agricultural purposes.
22. Section 13(3) of the Act specifically lays down that the term “land” means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. The definition of land is inclusive but is not wide enough to include the land which has ceased to be an agricultural land by reason of its no longer being used for the agricultural purposes. In cases titled Ram Lubbaya, Narain Singh, N.B Singh and Nilima Gupta (Supra), this court has clearly and consistently held that the provisions of Delhi Land Reforms Act ceases to apply as soon as the land ceases to be an agricultural land.
26. Above discussion makes it amply clear that an agricultural land must be used for the agricultural purposes only if the Land Reforms Laws are to be made applicable and if it is not so used, it will cease to be an agricultural land. In the instant case, admittedly, the land in question has not been used for any purposes contemplated therein under the Land Reforms Act, instead, the land has been built upon. Admittedly, two residential units have been constructed on the land in question out of which one is used by the parties as their residence and the other one was rented out and so far, the land has not been, in fact had never been used for the agricultural purposes. It is not the case of the defendants that they are carrying out any agricultural activity or any other allied permissible activity on the land in question. Therefore, as per the aforesaid reasoning and the view taken consistently by this court in number of judgments, the land in my considered view, has ceased to be an agricultural land and will no longer be governed by the provisions of the Delhi Land Reforms Act. Thus, the jurisdiction of civil court cannot be said to be barred by virtue of the provisions of section 185 of the Act.”
11. Thus, there is no escape from the conclusion that the land in question is not a ‘land’ as envisaged under Section 3(13) of the DLR Act.
12. Moreover, the SARFAESI Act nowhere defines ‘land’ or ‘agricultural land’. Though ‘land’ as envisaged under Section 3(13) of the DLR Act is a very wide term and includes any land on which any of the various activities mentioned in the Section is being carried on, however, by no means, it can be read to be an agricultural land for the purposes of section 31(i) of the sarfaesi act. the provisions of section 31(i) appear to have been incorporated to only protect the land where actual agricultural activity is being carried on. It is not even the case of the Petitioner that any agricultural activity is being carried on the land in question. Also, Respondent No. 1's plea that a banquet hall is being run on the land in question has not been rebutted by the Petitioner by either producing any document or by even filing any rejoinder affidavit refuting that contention. Thus, the land cannot be called to be an ‘agricultural land’ as envisaged under section 31(i) of the sarfaesi act. Hence, it cannot be said that the provisions of SARFAESI Act are not applicable to the land in question.
13. It is well settled that the powers under Article 226 of the Constitution conferred on all the High Courts in the matter of issuing writs are very wide. There are, however, self-imposed limitations on the powers of the High Courts not to issue such writs when adequate efficacious alternative remedy is available. In U.P State Spg. Co. Ltd. v. R.S Pandey, (2005) 8 SCC 264, the Supreme Court at length discussed the exceptional cases wherein writs under Article 226 could be issued in spite of availability of alternative efficacious remedy. Paras 11 to 16 of the Report in R.S Pandey are extracted hereunder:
“11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.
12. Constitution Benches of this Court in K.S Rashid and Son v. Income Tax Investigation Commission [1954 SCR 738 : AIR 1954 SC 207], Sangram Singh v. 1. Election Tribunal, Kotah, AIR 1955 SC 425], Union Of India v. T.R Varma [1958 SCR 499 : AIR 1957 SC 882], State Of U.P v. Mohammad Nooh . [1958 SCR 595 : AIR 1958 SC 86] and K.S Venkataraman and Co. (P) Ltd. v. State of Madras [(1966) 2 SCR 229 : AIR 1966 SC 1089] held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
13. Another Constitution Bench of this Court in State of M.P v. Bhailal Bhai [(1964) 6 SCR 261 : AIR 1964 SC 1006] held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T Veluswami Thevar v. G. Raja Nainar [1959 Supp (1) SCR 623 : AIR 1959 SC 422], Municipal Council, Khurai v. Kamal Kumar [(1965) 2 SCR 653 : AIR 1965 SC 1321], Siliguri Municipality v. Amalendu Das [(1984) 2 SCC 436 : 1984 SCC (Tax) 133 : AIR 1984 SC 653], S.T Muthusami v. K. Natarajan [(1988) 1 SCC 572 : AIR 1988 SC 616], Rajasthan SRTC v. Krishna Kant [(1995) 5 SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110 : AIR 1995 SC 1715], Kerala SEB v. Kurien E. Kalathil [(2000) 6 SCC 293 : AIR 2000 SC 2573], A. Venkatasubbiah Naidu v. S. Chellappan [(2000) 7 SCC 695], L.L Sudhakar Reddy v. State of A.P [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra [(2001) 8 SCC 509], Pratap Singh v. State of Haryana [(2002) 7 SCC 484 : 2002 SCC (L&S) 1075] and GKN Driveshafts (India) Ltd. v. ITO [(2003) 1 SCC 72].
14. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
15. In G. Veerappa Pillai v. Raman & Raman Ltd. [1952 SCR 583 : AIR 1952 SC 192], CCE v. Dunlop India Ltd. [(1985) 1 SCC 260 : 1985 SCC (Tax) 75 : AIR 1985 SC 330], Ramendra Kishore Biswas v. State of Tripura [(1999) 1 SCC 472 : 1999 SCC (L&S) 295 : AIR 1999 SC 294], Shivsonda Anna Patii v. State of Maharashtra [(1999) 3 SCC 5 : AIR 1999 SC 2281], C.A Abraham v. ITO [(1961) 2 SCR 765 : AIR 1961 SC 609], Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131 : AIR 1983 SC 603], H.B Gandhi v. Gopi Nath and Sons [1992 Supp (2) SCC 312], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1 : AIR 1999 SC 22], Tin Plate Co. of India Ltd. v. State of Bihar [(1998) 8 SCC 272 : AIR 1999 SC 74], Sheela Devi v. Taspal Singh [(1999) 1 SCC 209] and Punjab National Bank v. O.C Krishnan [(2001) 6 SCC 569] this Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
16. If, as was noted in Ram and Shvam Co. v. State of Haryana [(1985) 3 SCC 267 : AIR 1985 SC 1147] the appeal is from “Caesar to Caesar's wife” the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for this Court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in First ITO v. Short Bros. (P) Ltd. [(1966) 3 SCR 84 : AIR 1967 SC 81] and State of U.P v. Indian Hume Pipe Co. Ltd. [(1977) 2 SCC 724 : 1977 SCC (Tax) 335] That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings themselves are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.”
14. No such exceptional case has been made out by the Petitioner in order to enable me to entertain this writ petition in spite of availability of alternative efficacious remedy under Section 17 of the SARFAESI Act.
15. In Punjab National Bank v. Q.C Krishnan, (2001) 6 SCC 569, the decree passed by the Debt Recovery Tribunal, Calcutta was challenged in a writ filed under Article 226. The High Court allowed the petition by observing that as the mortgaged property directed to be sold was situated in Chennai, the Debt Recovery Tribunal had no territorial jurisdiction in respect thereto and it could not have ordered the sale of the mortgaged property. However, the Supreme Court said that the High Court should not have entertained the writ petition because of availability of an adequate alternative efficacious remedy. In paras 5 and 6 of the Report, the Supreme Court held as under:
“5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short “the Act”). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.
6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.”
16. In United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110, the Supreme Court observed that the expression “any person” in Section 17(1) of SARFAESI Act includes even guarantor or any other person. The Supreme Court deprecated the practice of entertaining writs under Article 226 in spite of availability of statutory remedies under the DRT act and the sarfaesi act. paras 42 to 46 and 55 of the Report are extracted hereunder:
“42. There is another reason why the impugned order should be set aside. If Respondent 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 the 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 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 envisage 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 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 (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 [AIR 1969 SC 556], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] and Harhanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an 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 the 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.”
17. Thus, the instant case is squarely covered by the judgments of the Hon'ble Supreme Court in O.C Krishnan and Satyawati Tondon. Hence, in view of the availability of an alternative efficacious remedy, it will not be permissible for this Court to entertain the present writ petition.
18. The learned counsel for the Petitioner relies on a three Judge Bench decision of the Hon'ble Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 to contend that where a Court entertains a suit or an appeal over which it has no jurisdiction, a decree passed by the Court is without jurisdiction and is a nullity and it can be challenged before any Court at any time. The learned counsel for the Petitioner also relies on Amrit Bhikaji Kale v. Kashinath Janardhan Trade, (1983) 3 SCC 437 to urge that where a Tribunal of limited jurisdiction entertains a petition ignoring a statutory provision by a decision wholly unwanted with regard to the jurisdictional fact, its decision is a nullity and the plea of nullity can be set up in collateral proceedings. Again the judgments relied are inapplicable as it has been demonstrated above that the Petitioner was entitled to invoke the provisions of Section 17 and 18 of the SARFAESI Act even if the order passed by the learned ACMM was without jurisdiction or the mortgaged property was not a secured asset or even if the order was passed in respect of a land to which the Act was not applicable.
19. No exceptional circumstances have been made out by the Petitioner to invoke the writ jurisdiction under Article 226/227 of the Constitution in view of adequate efficacious alternative remedy being available to him.
20. The writ petition is devoid of any merit; the same is accordingly dismissed with costs quantified at Rs. 25,000/-.
21. Pending applications, if any, stand disposed of.