Prayer: Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records of the 2nd respondent IA. No. 970/2011 in SA. No. 113/2010 and quash the order dated 04.04.2014 as illegal and arbitrary and further direct the 1st respondent to restructure and regularise the account of the petitioner.
ORDER
[Order of the Court was made by S. VAIDYANATHAN, J.,]
The above writ petition has been filed by the petitioner to quash the order passed by the 2 respondent IA. No. 970/2011 in SA. No. 113/2010 and quash the order dated 04.04.2014 as illegal and arbitrary and further direct the 1 respondent to restructure and regularise the account of the petitioner.
2. The case of the petitioner is that the petitioner availed loan to the tune of Rs. 25 lakhs from the 1 respondent/Bank for running his business, offering two of his properties as securities to the said loan and since he has committed default in repayment of the loan amount, the 1 respondent/Bank initiated proceedings by filing OA. No. 98/2010 on the file of the DRT, Coimbatore, for recovering a sum of Rs. 41,23,029.92p. After obtaining the Recovery Certificate, the 1 respondent/Bank issued a Demand Notice u/s.13[2] of the SARFAESI Act, 2002, 16.04.2010, followed by the Possession Notice u/s.13[4] of the Act. The said Possession Notice was challenged by the petitioner before the DRT by filing SA. No. 113/2010. In the said SA. No. 113/2010, the petitioner has filed an interim application in IA. No. 970/2011 seeking to cross-examine the Authorised Officer and the Valuer. But the DRT, by its order dated 04.04.2014, which is impugned herein, has dismissed the said application. Aggrieved over the same, the petitioner has approached this Court by way of filing the present writ petition with the aforesaid prayer.
3. Learned counsel for the petitioner would submit that an application has been filed by the petitioner in IA. No. 970/2011 in SA. No. 113/2010 under section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and he has sought for a prayer to examine the Authorised Officer of the Bank and the Valuer, which was rejected by the 2 respondent herein. The petitioner has also admitted that he has got a right of appeal as contemplated under section 18 of the SARFAESI Act, 2002. But, since there is an error apparent on the face of record and that is a legal contention which could be considered by this Court by reading section 17[7] of the SARFAESI Act, 2002, together with section 22[2] of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the Tribunal has got ample powers to summon, examine witnesses or scrutinise the documents filed before it. But the Tribunal has not adverted to the above provisions of law and dismissed the petition. Hence, the petitioner is before this Court with the above said prayer.
4. We have heard the learned counsel for the petitioner. We have also gone through the documents made available on record.
5. Though there is much force in the contention of the learned counsel for the petitioner, we have our own reservation about the examination of the Authorised Officer as he is one of the officers contemplated under the provisions of law. As far as the examination of the Valuer is concerned, it is true that as per provisions of the Act, he can be examined. But, it is for the Tribunal to decide whether the permission for examining the Valuer could be granted or not and if there is any rejection by the DRT, it is for the petitioner to agitate his grievance before the Appellate Authority, viz., the DRAT, as per section 18 of the SARFAESI Act, 2002. The reasons attributed by the learned counsel for the petitioner for by-passing the alternative remedy available under the provisions in approaching this Court under Article 226 of the Constitution of India, are unsustainable both in law and on fact. The Hon'ble Apex Court has time and again reiterated that whenever there is an alternative and effective remedy available, filing of writ petitions under Article 226 of the Constitution of India, by-passing the provisions of the statutory law, more particularly, in SARFAESI proceedings, should not be entertained. The Hon'ble Supreme Court in UNITED BANK OF INDIA v. SATYAWATI TONDON reported in (2010) 8 SCC 110 has held as follows:-
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45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but there can be no 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 that the particular legislation contains a detailed mechanism for redressal of his grievance.
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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.”
In view of the above settled principle laid down by the Apex Court, we are of the considered view that this petition is too premature and the petitioner can very well raise all the grounds, raised before this Court, before the competent authority/Forum by filing appropriate appeal as provided under the Act.
6. However, an appeal u/s.18 of the Act as against the order of the DRT should be filed within a period of thirty days from the date of receipt of the order copy of the DRT and in the instant case, the order of the DRT in IA. No. 970/2011 in SA. No. 113/2010 came to be passed on 04.04.2014 and certainly the period of limitation would have expired already. The Hon'ble First Bench at the Madurai Bench of this Court in WP. [MD] No. 3167/2010 etc., batch, [B. SARAVANAN v. THE AUTHORISED OFFICER, SYNDICATE BANK, 105-106, PONNURANGAM ROAD [WEST], R.S PURAM, COIMBATORE] dated 21.11.2013 has held in paragraph 7 as follows:-
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7. In view of the above, the aggrieved parties are permitted to move the appropriate Forum provided under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, within a period of eight weeks from today, failing which, it would be open to the respondent Banks concerned to proceed further, as per the relevant provisions of law, including the provisions contained in Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. If the aggrieved parties approach the appropriate forum in time, as specified in this order, the appropriate forum shall entertain such matters, on merits and in accordance with law and dispose of the same, without raising the issue of delay, in the filing of the matters.
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In view of the above said order of the Hon'ble First Bench of this Court, the petitioner is hereby directed to prefer an appeal u/s.18 of the SARFAESI Act before the Appellate Tribunal, viz., the DRAT, within a period of fifteen days from the date of receipt of a copy of this order and on such appeal being preferred, the DRAT shall consider the said appeal on merits taking into consideration the aforesaid provisions contemplated under the SARFAESI Act, 2002 and RDDBFI Act, 1993. If the petitioner fails to file the appeal within the time stipulated by this Court today, the order passed by the DRT, Coimbatore, shall stand restored and it is open to the respondent/Bank to take action against the petitioner as per law.
7. With the above observation and direction, this Writ Petition is dismissed as devoid of merits at the admission stage itself. No costs. Consequently, connected miscellaneous petition is also dismissed.
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