Court No. - 39
Case :- WRIT - C No. - 22291 of 2020 Petitioner :- Fulchandra Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Prakash Veer Tripathi Counsel for Respondent :- C.S.C.,Ashish Agrawal
Hon'ble Naheed Ara Moonis,J. Hon'ble Dinesh Pathak,J.
Heard Shri Prakash Veer Tripathi, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondents No. 1, 2 and 3 and Ms Rupal Agrawal, holding brief of Shri Ashish Agrawal, learned counsel representing respondent Nos. 4 and 5.
The instant writ petition has been filed praying for the following relief:
"1. Issue a writ, order or direction in the nature of certiorari quashing the order dated 26.6.2019 passed by respondent No. 2 as well as communication order dated 04.7.2020 passed by respondent No. 3.
2. Issue a writ, order or direction in the nature of mandamus directing the respondents not to take any coercive action in pursuance of the order dated 26.6.2019 passed by respondent No. 2. and to maintain status quo with regard to the property in question."
Learned counsel for the respondent-Bank has made a preliminary objection that against the demand and possession notice issued under Section 13(4) of SARFAESI Act, the petitioner has failed to repay the loan amount and hence pursuant to the proceeding under Section 14 of the Act, the respondent No. 2 has passed the impugned order dated 26.6.2019. Thereafter, the respondent No. 3 has proceeded to take possession which has duly been communicated to the petitioner on 04.7.2020. The petitioner has not raised any objection at any stage of the proceeding, who had an alternative remedy by approaching the DRT under Section 17 of the Act.
Learned counsel for the petitioner does not dispute that there existed an alternative remedy.
The Hon'ble Supreme Court in the case of ICICI Bank Ltd. v. Umakanta Mohapatra,2019(13) SCC 497, has held as under:
"Delay condoned. Leave granted.
Despite several judgments of this Court, including a judgment by Hon'ble Mr. Justice Navin Sinha, as recently as on 30.01.2018, in Authorized Officer, State Bank of Travancore and Another VS Mathew KC., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are Non-Performing Assets (NPAs).
The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:-
"18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. Vs Prem Heavy Engineering Works (P) Ltd and another, (1997) 6 SCC 450, observing:-
"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
The appeals are allowed in the aforesaid terms. Pending applications, if any, shall stand disposed of."
The Hon'ble Supreme Court in the case of C.
Bright Vs. District Collector and others, Civil Appeal No. 3441 of 2020, decided on 05.11.2020, has held as under:
"21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors.21 held that 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 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. Hindon Forge Private Limited has held that the remedy of an aggrieved person by a secured creditor under the Act is by way of an application before the Debts Recovery Tribunal, however, borrowers and other aggrieved persons are invoking the jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India without availing the alternative statutory remedy. The Hon'ble High Courts are well aware of the limitations in exercising their jurisdiction when affective alternative remedies are available, but a word of caution would be still necessary for the High Courts that interim orders should generally not be passed without hearing the secured creditor as interim orders defeat the very purpose of expeditious recovery of public money. Thus, in view of the settled legal position, we find, in this case, no justification for invoking our extraordinary jurisdiction under Article 226 of the Constitution of India."
In the light of the principles enunciated by the Hon'ble Supreme Court we decline to entertain the present writ petition.
Accordingly, the writ petition is dismissed.
Order Date :- 7.1.2021 Ishrat