Authorized Officer, State Bank of Travancore and Another vs Mathew K.C.

Leave granted.

The present appeal assails an interim order dated 24.04.2015 passed in a writ petition under Article 226 of the Constitution, staying further

proceedings at the stage of Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002 (hereinafter referred as the ''SARFAESI Act''), on deposit of Rs. 3,50,000/-within two weeks. An appeal against the same has also been

dismissed by the Division Bench observing that counter affidavit having been filed, it would be open for the Appellant Bank to seek

clarification/modification/variation of the interim order.

Shri H.P. Raval, learned Senior Counsel appearing for the Appellants, submits that the loan account of the Respondent was declared a Non-

Performing Asset (NPA) on 28.12.2014. The outstanding dues of the Respondent on the date of the institution of the writ petition was Rs.

41,82,560/-. Despite repeated notices, the Respondent failed and neglected to pay the dues. Statutory notice under Section 13(2) of the

SARFAESI Act was issued to the Respondent on 21.01.2015. The objections under Section 13(3A) were considered, and rejection was

communicated by the Appellant on 31.3.2015. Possession notice was then issued under Section 13(4) of the Act read with Rule 8 of The Security

Interest (Enforcement) Rules, 2002 (hereinafter referred to as ''the Rules'') on 21.04.2015.

The SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions,

the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate

Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies

available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance

was placed on United Bank of India v. Satyawati Tandon and others, 2010(3) R.C.R.(Civil) 963 : 2010(4) Recent Apex Judgments (R.A.J.) 660

: 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another v. Ikbal and others, 2013 (10) SCC 83.

The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere

with the same.

Shri Roy Abraham, learned Counsel for the Respondent, submitted that it was desirous to repay the loan, and merely sought regularisation of

the loan account. The inability to service the loan was genuine, occasioned due to market fluctuations causing huge loss in business, beyond the

control of the Respondent. The failure of the Bank to consider the request for regularisation of the loan account, the absence of a right to appeal

under Section 17 against the order passed under Section 13(3A), the Respondent was left with no option but to prefer the writ application as the

Respondent genuinely desired to discharge the loans. The collateral security offered included agricultural lands also, which had to be excluded

under Section 31 of the SARFAESI Act. There had been violation of the principles of natural justice. A large number of similar writ applications

are pending before the High Court preferred by the concerned borrowers, but the Bank has singled out the present Respondent alone for a

challenge.

We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the

Constitution is loathe to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to

prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under

Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ

petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within

the well defined exceptions as observed in Commissioner of Income Tax and Others v. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows:

Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory

authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial

procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles

of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High

Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person

or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.

Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the

statutory dispensation.

The pleadings in the writ petition are very bald and contain no statement that the grievances fell within any of the well defined exceptions. The

allegation for violation of principles of natural justice is rhetorical, without any details and the prejudice caused thereby. It harps only on a desire for

regularisation of the loan account, even while the Respondent acknowledges its own inability to service the loan account for reasons attributable to

it alone. The writ petition was filed in undue haste in March 2015 immediately after disposal of objections under Section 13(3A). The legislative

scheme, in order to expedite the recovery proceedings, does not envisage grievance redressal procedure at this stage, by virtue of the explanation

added to Section 17 of the Act, by Amendment Act 30 of 2004, as follows :-

Explanation.-For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured

creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of

reasons to the borrower shall not entitle the person (including the borrower) to make an application to the Debts Recovery Tribunal under

this sub-section.

The Section 13(4) notice along with possession notice under Rule 8 was issued on 21.04.2015. The remedy under Section 17 of the

SARFAESI Act was now available to the Respondent if aggrieved. These developments were not brought on record or placed before the Court

when the impugned interim order came to be passed on 24.04.2015. The writ petition was clearly not instituted bonafide, but patently to stall

further action for recovery. There is no pleading why the remedy available under Section 17 of the Act before the Debt Recovery Tribunal was not

efficacious and the compelling reasons for by-passing the same. Unfortunately, the High Court also did not dwell upon the same or record any

special reasons for grant of interim relief by direction to deposit.

The statement of objects and reasons of the SARFAESI Act states that the banking and financial sector in the country was felt not to have a

level playing field in comparison to other participants in the financial markets in the world. The financial institutions in India did not have the power

to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing

commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mounting non-performing assets of banks and

financial institutions. The Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had

suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell

them without court intervention which would enable them to realise long term assets, manage problems of liquidity, asset liability mismatches and

improve recovery. The proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as

''the DRT Act'') with passage of time, had become synonymous with those before regular courts affecting expeditious adjudication. All these

aspects have not been kept in mind and considered before passing the impugned order.

Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank v. O.C.

Krishnan and others, 2001(4) R.C.R.(Civil) 668 : (2001) 6 SCC 569, that :-

The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial

institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure

cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil

suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226

and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains

from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the

petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided

by the Act.

In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration

of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the

appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition

ought not to be entertained in view of the alternate statutory remedy available holding :-

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.

***

It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of

statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have

serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High

Courts will exercise their discretion in such matters with greater caution, care and circumspection.

In Union Bank of India and another v. Panchanan Subudhi, 2010 (15) SCC 552, further proceedings under Section 13(4) were stayed in the

writ jurisdiction subject to deposit of Rs. 10,00,000/- leading this Court to observe as follows :

In our view, the approach adopted by the High Court was clearly erroneous. When the respondent failed to abide by the terms of one-

time settlement, there was no justification for the High Court to entertain the writ petition and that too by ignoring the fact that a statutory

alternative remedy was available to the respondent under Section 17 of the Act.

The same view was reiterated in Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others, 2011(2) R.C.R.(Civil) 676 :

2011(2) Recent Apex Judgments (R.A.J.) 318 : 2011 (2) SCC 782 observing:

In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the

appellants under Section 17 of the Act. It is well settled 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. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya

Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)

In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the ''SARFAESI Act'' available to challenge by the

aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati

Tandon (Supra), observing :

No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is

well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under

Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented.

***

28.......In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious

remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such

relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar

facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.

A similar view was taken in Punjab National Bank and another v. Imperial Gift House and others, (2013) 14 SCC 622, observing:-

Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before

any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court.

In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and

quashing the proceedings initiated by the Bank.

It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law

stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed

after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the

aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax

payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a

fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the

money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as

expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-

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. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash

Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn.

Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an

appropriate interim order.

The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and

that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent

developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification

could be sought of the interim order cannot be considered sufficient justification to have declined interference.

We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy

Engineering Works (P) Ltd. and Another, 1997(3) R.C.R.(Civil) 134 : 1997 (6) SCC 450, observing :-

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 impugned orders are therefore contrary to the law laid down by this Court under Article 141 of the Constitution and unsustainable. They

are therefore set aside and the appeal is allowed.

All questions of law and fact remain open for consideration in any application by the aggrieved before the statutory forum under the

SARFAESI Act.