Smt. Sabnam and Another vs District Magistrate and Another

B.S. Verma, J.

(Stay Application No. 10698 of 2010)

Heard learned Counsel for the Petitioners as well as the learned Counsel for the Respondent No. 1 and 2 and perused the record.

By means of this writ petition, the Petitioners have sought the following relief:

i) write order or direction in the nature of certiorari to quash the notice dated 23-11-2010 issued by Respondent No. 1.

ii) Issue a writ, order or direction in the nature of mandamus directing the Respondent No. 2 to fix easy instalment of loan taken by Petitioners.

iii) Issue any other or further writ, order or direction which this Hon''ble Court may deem fit and proper in the circumstances of the case.

iv) To award the cost of the petition in favour of the Petitioner.

A perusal of the record shows that the Petitioners had taken loan from the Respondent No. 2-Bank for construction of house on security of plot measuring 67.72 sq.mt., plot No. 247, situate at village Haldwani Malli, Tehsil Haldwani (Nainital). However the Petitioners could not deposit regular instalment towards repayment of the loan amount. It appears that a notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act) was issued to the Petitioners on 13-7-2009. When the notice was not complied with, therefore, the proceedings u/s 13(4) read with Section 14 of the Act have been initiated against the Petitioner. Hence this writ petition has been preferred.

In the course of arguments, Mr. D.S. Patni, Advocate, appearing on behalf of the Respondent No. 2-Bank has submitted that the writ petition is not maintainable because the Petitioners had alternate remedy of statutory appeal u/s 17 of the Act before the Debt Recovery Tribunal. Learned Counsel for the Bank has relied upon a Division Bench judgment of this Court in the case of Smt. Alpana Shankar v. Union Bank of India and Anr. reported in 2005 (1) U.D. 692; In paragraph No. 6, it has been observed as under:

Admittedly, the Petitioner was given notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. If the Petitioner failed to discharge the liabilities within sixty days, the Respondent Bank is entitled to take recourse to one or more of the measures mentioned u/s 13(4) of the said Act to recover the secured debt. If the Petitioner is aggrieved by any such action taken by the Bank u/s 13(4) of the Act, the Petitioner has a right of appeal to the Debt Recovery Tribunal u/s 17 of the said Act. From the averments made in the writ petition, it is not clear whether the Respondents have taken any action u/s 13(4) of the Act. If any such action has already been taken or as and when such action is taken, the Petitioner can approach the Debt Recovery Tribunal u/s 17 of the Act for redressal of her grievance. For this reason also, this Court cannot interfere in the matter in exercise of the power under Article 226 of the Constitution of India. Unless there are extreme and compelling circumstances, the High Court cannot exercise jurisdiction under Article 226 of the Constitution of India when the party has got an effective alternate remedy available under the Statute. The Petitioner has not made out any such extreme and compelling circumstance to persuade this Court to exercise the jurisdiction under Article 226 of the Constitution of India.

An effective alternate remedy of filing statutory appeal u/s 17 of the Act before the Debt Recovery Tribunal is available to the Petitioners. Hence I am not inclined to entertain the writ petition. The writ petition is dismissed in limine. No order as to costs. However, the Petitioners may approach appropriate Forum for redressal of their grievance.