IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOS.407-409 OF 2018 (GM-DRT) BETWEEN:
M/s. Polybond Organics Private Limited No.4 & 5, 4th Floor, Narang Chambers, 99/3, N.R. Road, Bengaluru-560 002, Represented by its Managing Director Mr. Dinesh V. Baliga (By Smt. Kavitha D, Advocate) AND:
M/s. Canara Bank Town Hall Branch No.51, Stock Exchange Towers Commercial Centre Bengaluru-560 002 Represented by:
Assistant General Manager/ Authorised Officer.
(By Sri. Vinay Swamy, Advocate) … Petitioner … Respondent These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to set aside the impugned order dated 29.12.2017 passed in I.A.No.2208/2017 in S.R.(M.A)No.11208/2017 by Hon’ble Debt Recovery Tribunal-II, Bengaluru under Annexure-H and etc., These Petitions coming on for Orders this day, the Court made the following:-
ORDER Smt. Kavitha D., learned counsel for the petitioner.
Sri. Vinay Swamy, learned counsel for the respondent.
Petitions are admitted for hearing. With the consent of the parties, the same is heard finally.
2. In these petitions under Articles 226 and 227 of the Constitution of India, petitioner inter-alia has prayed for the following reliefs:
“a) Issue writ in the nature of Certiorari and set aside the impugned order dated 29.12.2017 passed in I.A.No.2208/2017 in S.R. (M.A.) No.11208/2017 by Hon’ble Debt Recovery Tribunal-II, Bengaluru under Annexure-H.
b) Issue necessary directions to Debt Recovery Tribunal-II, Bengaluru to exclude the time spent in prosecuting writ petition No.24883-85/2017 before this Hon’ble Court, while computing the period of limitation in S.R.(S.A.) No.11208/2017 filed by the petitioner under Section 17(1) of the SARFAESI Act, 2002 and c) Issue such other writ, order or direction/s as may be deemed fit to grant in the given circumstances of the case.”
3. When the matter was taken up today, learned counsel for the respondent submitted that against the order dated 29.12.2017 passed by the Debt Recovery Tribunal (hereinafter referred to as ‘the Tribunal’ for short), an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’ for short) lies and the petitioner should have availed the remedy of the appeal.
4. On the other hand learned counsel for the petitioner submitted that petitioner was granted liberty to approach the Tribunal by a Bench of this Court. However, the Tribunal has rejected the application filed by the petitioner on the ground that the same is barred by limitation and therefore, petitioner has approached this Court.
5. Even otherwise, in view of the judgment laid down by the Hon’ble Supreme Court in ‘UNITED BANK OF INDIA VS. SATYAWATI TONDON AND ORS.’, (2010) 8 SCC 110, wherein while interpreting the provisions of the Act, the Hon’ble Apex Court has held that, once the proceedings under the Act is initiated by the Bank, efficacious remedy in the form of appeal under Section 17 of the Act is provided to the petitioners and they should avail the same. The aforesaid decision was quoted with approval in the case of ‘AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER vs. MATHEW K.C’, (2018) 3 SCC 85. Similar view has been taken in ‘KANAIYALAL LALCHAND SACHDEV AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS’, (2011) 2 SCC 782 and it has been held that an appeal under Section 17 of the Act lies and the High Court was not justified in entertaining the Writ Petition. The aforesaid view is reiterated in ‘AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER (supra).
6. Thus, in view of enunciation of law where the Statute creates right and remedy for the interference of the right, the remedy provided by the Statute has to be availed of and this Court should not exercise extraordinary jurisdiction under Article 226 of the Constitution of India, which is evident from the view in SATYAWATI TONDON AND ORS’s Case (Supra).
7. In view of enunciation of law, these petitions are disposed of with liberty to the petitioner to file an application before the Tribunal. At this stage, learned counsel for petitioner seeks a direction to the Tribunal to take note of Items Nos.2 and 3 of schedule property.
Needless to state that in case petitioner files an appeal before the Tribunal within a period of two weeks from the date of receipt of certified copy of the order passed today, petitioner shall be entitled to the benefit of the principles contained under Section 14 of the Limitation Act, 1963 and the Tribunal shall decide the appeal preferred by the petitioner on merits and in accordance with law after affording an opportunity of hearing to the parties.
Sd/- JUDGE Mds/-