Court No. - 39
Case :- WRIT - C No. - 2189 of 2019
Petitioner :- Malti Devi
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Bairister Singh,Vijay Bahadur Yadav
Counsel for Respondent :- C.S.C.,Satish Chaturvedi
Hon'ble B. Amit Sthalekar,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Bairister Singh, learned counsel for the petitioner, Sri Ankit Saxena for the respondents no.3 and learned Standing Counsel for the respondents no. 1 and 2.
The petitioner is seeking quashing of notice dated 28.12.2018 issued under Rule 8 (6) Security Interest (Enforcement) Rules, 2002, with request to stay auction of the property Arazi no. 263/1M, 295/1M, 295/2M, 296/1M, 297/1M, new Arazi no. 444 measuring 126 square meters situated in village Naika Pargana Jhunsi, Tehsil Phoolpur, District Allahabad, vide auction notice dated 28.12.2018 and also to stay the auction dated 30.01.2019.
The contention of the petitioner is that in the notice dated 28.12.2018, the borrower is the respondent no.4, guarantor is the respondent no.5 and petitioner has nothing to do with it.
However, we find that in the notice, the description of the property is Arazi no. 263/1M.1, 295/1, 295/2, 296 and 297 area 126 square meter.
According to the petitioner, Arazi no. 263/1M, 295/1M, 295/2M, 296/M, 297/M and Arazi no. 444 also measuring 126 square meter, is situated in the same village.
The contention of learned counsel for the respondent is that the respondents. 4 and 5 in order to avoid the sale of the properties for redemption of the loan of the bank have sold out the properties to several persons including the petitioner. This is disputed by the petitioner.
In our opinion, since the impugned notice arises out of proceedings under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter to be referred as "the SARFAESI Act"), the petitioner has a remedy by filing an appeal under Section 17 of the Act 2002, before the Debt Recovery Tribunal.
The law in this regard is very clear that when appropriate forum is provided under the SARFAESI Act this Court stands injuncted from interfering with any matter arising out of the proceedings under the SARFAESI Act. The petitioner has a remedy under Section 17 (1) of the SARFAESI Act by approaching the Debt Recovery Tribunal. Therefore, no ground for interference is made out particularly, in view of the judgement of the Supreme Court in the case of United Bank of India vs. Satyawati Tandon and others, reported in (2010) 8 SCC 110 wherein the Court in paragraph 42 & 43 has held as under :
"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 pas 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."
In the case of Standard Chartered Bank Vs. V. Noble Kumar and others reported in (2013) 9 SCC 620, the Supreme Court in paragraph 27 has held as under:
"27.The "appeal" under section 17 is available to the borrower against any measure taken under section 13(4). Taking possession of the secured asset is only one of the measures that can be taken by the secured creditor. Depending upon the nature of the secured asset and the terms and conditions of the security agreement, measures other than taking the possession of the secured asset are possible under section 13(4). Alienating the asset either by lease or sale, etc. and appointing a person to manage the secured asset are some of those possible measures. On the other hand, section 14 authorises the Magistrate only to take possession of the property and forward the asset along with the connected documents to the borrower (sic the secured creditor). Therefore, the borrower is always entitled to prefer an "appeal" under section 17 after the possession of the secured asset is handed over to the secured creditor. Section 13(4)(a) declares that the secured creditor may take possession of the secured assets. It does not specify whether such a possession is to be obtained directly by the secured creditor or by resorting to the procedure under section 14. We are of the opinion that by whatever manner the secured creditor obtains possession either through the process contemplated under section 14 or without resorting to such a process obtaining of the possession of a secured asset is always a measure against which a remedy under section 17 is available."
In the case of Kanaiyalal Lalchand Sachdev & others vs. State of Maharashtra and others reported in 2011 (2) SCC 782, the Supreme Court in paragraph 20 has held as under:
"20. We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4), and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT."
In a recent judgement of the Supreme Court dated 5.10.2018 passed in Civil Appeal No. 10251-10265 of 2018 (ICICI Bank Ltd. Vs. Umakant Mahapatra), the Supreme Court has held as under:-
"Delay Condoned. Leave granted.
Despite several judgements 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 Anr. vs. Mathew K.C., (2018) 3 SCC 85, the High Courts continue to entertain matters which arise under the 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 Industrict 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."
In view of the judgments of the Supreme Court in Satyawati Tandon (supra), V. Noble Kumar (supra), Kanaiyalal Lalchand Sachdev (Supra) and in Umakant Mahapatra (supra), this writ petition is not maintainable as the petitioner has a remedy by way of application/appeal under Section 17(1) of the SARFAESI Act, 2002.
Learned counsel for the petitioner seeks protection in view of auction having taken place on 30.01.2019 i.e. today itself.
We therefore, direct that in case, the petitioner files an appeal under Section 17 (1) of of the SARFAESI Act 2002, before the Debt Recovery Tribunal, Allahabad within 15 days from today along with stay application and a certified copy of this order the tribunal shall consider the petitioner's stay application in accordance with law within a further period of one month.
Subject to compliance of the above direction by the petitioner, we direct that the auction sale shall not be confirmed for a period of 45 days.
The writ petition is accordingly, disposed of.
Order Date :- 30.1.2019 S.Ali