Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner and Sri Prem Prakash Srivastava, learned counsel appearing for respondent nos.2 and 3 and learned Standing Counsel for respondent no.1.
Instant writ petition has been filed seeking following relief :
?(i) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 to redeem the mortgage property to the petitioner in lieu of entire home loan amount whatever due to the petitioner for which petitioner is ready to make the payment in one installment with all the expenses is incurred in the process of recovery of house loan amount along with other legal expenses.?
It is submitted by learned counsel for the petitioner that she had taken loan from respondent no.2 in the year 2014 amounting Rs.15 lakhs (6+9) for construction of a house over two adjoining plots situated at Mohalla-Aliganj in District and City-Banda. Further submission is that without giving any notice to petitioner and taking any step under Sections 13 (2) and 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ?SARFAESI Act, 2002?), secured-asset of the petitioner had been put to e-auction in the year 2017. Respondent-Bank had never given any notice to the petitioner for payment of secured debt and to the best knowledge of the petitioner, neither any auction proceeding had taken place nor any sale certificate has been issued in this regard. She is still in the possession of her house. It is further submitted that petitioner had requested several times to the bank authorities for furnishing a detailed statement with respect to the amount which she owes to the bank, but unfortunately they have not paid any heed to the grievances of the petitioner. It is further submitted that presently petitioner is ready and willing to deposit the entire amount to the bank, in case, she is provided the correct details of the statement of the account disclosing what amount she is liable to pay to the bank.
Per contra, learned counsel appearing for the respondent-bank states that the petitioner, who is the borrower, had already approached Debt Recovery Tribunal and moved an application registered as Original Application No.626 of 2017 ventilating her grievances. Copy of the stay application which was filed along with original application is already attached as Annexure no.1 to the writ petition. It is further submitted that the petitioner had already been served with notice dated 26.11.2020 (Annexure No.5 to the writ petition) wherein she has been directed to deliver the possession of secured assets, which had already been auctioned.
We have considered the submission advanced by the learned counsel for the parties. Though the factum of auction has been disputed by the learned counsel for the petitioner, but has admitted the filing of original application before Debt Recovery Tribunal.
The Hon'ble Supreme Court in the case of ICICI Bank Ltd. v. Umakanta Mohapatra, Civil Appeal Nos. 10243-10250 of 2018, decided on 05.10.2018, 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."
Recently the Hon'ble Apex Court in the case of C. Bright Vs. The District Collector & others, Civil Appeal No. 3441 of 2020 decided on 05.11.2020 has observed as follows:
"21. Even though, this Court in United Bank of India v. Satyawati Tondon & Ors., (2010) 8 SCC 110 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, how- ever, 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 effective 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.
22. Thus, we do not find any error in the order passed by the High Court. Consequently, the appeal is dismissed."
In the light of the fact, which is also admitted by learned counsel for the petitioner that petitioner had already approached before Debt Recovery Tribunal for redressal of her grievances with respect to the auction proceedings, which had allegedly taken place, where in secured-asset had be shown to be auctioned, in the notice dated 26.11.2020, present writ petition is not maintainable.
So far as disputed question of fact qua completion of auction proceedings is concerned, it is a matter already subjudice before Debt Recovery Tribunal and the petitioner has an opportunity to ventilate her grievances before it. With respect to same cause of action, two remedies cannot be availed simultaneously.
In the light of aforesaid observations, present writ petition is dismissed.
Order Date :- 19.1.2021 Manish Himwan