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Kamal Prakash VermA. Vs. Authorised Officer,state Bank of India and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty Civil
CourtRajasthan Jaipur High Court
Decided On
Case NumberS.B. Civil Writ Petition No.3891/2011.
Judge
ActsSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) - Section 13(2), 14; Constitution of India - Articles 226, 227;
AppellantKamal Prakash VermA.
RespondentAuthorised Officer,state Bank of India and anr.
Advocates:Mr. Sunil Kumar Yadav, Adv.
Excerpt:
.....of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of..........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.....
Judgment:
1.By way of the instant writ petition, the petitioner has sought the following relief:

(i) an appropriate writ, order or direction to direct the respondent bank to give back he physical possession over the mortgaged property to petitioner and respondent further be directed not to publish any press note regarding the mortgage property and further respondents be directed not to initiate any auction proceedings of the mortgage property;

(ii) an appropriate writ, order or direction be issued to respondents to revise the monthly installment as well as interest as per the actual release amount of petitioner housing loan account i.e. Rs. 5,00,000/- and the respondents be further directed to adjust the amount which was paid by the petitioner.

(iii) Any other appropriate relief, which is deemed just and property, may also be passed in favour of the petitioner.

2. Having considered the submissions made at the bar and carefully perused the relevant material on record, it is noticed that State Bank of India, Branch Sanganeri Gate, Jaipur sanctioned a loan of Rs. 6,75,000/- to the petitioner on mortgaging his land and building situated in village Badh Devi, Sector-7, Mansavorar, Jaipur. Since the petitioner failed to repay the loan amount, notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (here-in-after to be referred to for short as Act of 2002) was issued to the petitioner. Subsequently, the respondent Bank filed an application under Section 14 of the Act of 2002 before the District Collector and District Magistrate, Jaipur for providing police assistance in order to take the possession of the disputed property. District Collector and District Magistrate, Jaipur vide its order dated 16.12.2010 allowed the application of the respondent-Bank and in pursuance thereto, the respondent bank took possession of the mortgaged property of the petitioner.

3. It is further noticed that by way of the instant writ petition, the petitioner has implored the Court to get back the physical possession of the mortgaged property, which has already been taken over by the respondent-bank.

4. At the very outset, it is relevant to record that in plethora of judgments, the Hon'ble Apex Court has reiterated the well settled principle of law that ordinarily relief under Articles 226/227 of the Constitution of India is not available, if an efficacious alternative remedy is available to any aggrieved person.

5. In the case of United Bank of India Versus Satyawati Tondon and others reported in 2010 (8) SCC 110, the Hon'ble Apex Court has held thus:

42.There is another reason why the impugned order should be set aside. If respondent No.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).

6. The Hon'ble Apex Court further deprecated the practice of High Courts granting stay on the recovery of revenue in the following terms:

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.

7. To curb it, the Hon'ble Apex Court reminded the High Courts in the following words

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.

Emphasis supplied

8. In the latest judgment pronounced by the Hon'ble Supreme Court (Kanhaiya Lal Sachdev and others Versus State of Maharashtra and others : (2011) 2 SCC 782), not only the settled principle was upheld but was further strengthened as the Hon'ble Apex Court dismissed the appeals with costs quantified at Rs. 20,000/-.

9. Adverting to the facts of the instant case, it is found that instead of filing the civil suit for recovery of immovable property, the petitioner has filed the writ petition under Article 226/227 of the Constitution invoking this extraordinary jurisdiction. It has consistently been held by the Hon'ble Apex Court that the petitioner cannot be permitted to invoke the extraordinary jurisdiction under Article 226 of the Constitution when the alternative efficacious statutory remedy is already available to the aggrieved person. In view of afore-stated pronouncements of the Hon'ble Apex Court, the writ petition, to my firm view, is not at all maintainable and deserves to be dismissed in lamina.

10. For the reasons afore-stated, the writ petition being bereft of any substance/merit stands dismissed.


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