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ALLAHABAD HIGH COURT
Dr. Devendra Kumar Arora, J.
M/s Lucknow Chain Links Thru Partner
Amit Rastogi and Ors. —Petitioners
versus
Asset Reconstruction Company (India)
Ltd and Ors. —Respondents
Misc. Single No.20842 of 2016
Decided on 7.9.2016
For the Petitioners:Prashant Kumar, Advocate
For the Respondents:Avdhesh Shukla, Akhilesh Kalra and Sachin Garg, Advocates
IMPORTANT POINT
When an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke extra ordinary jurisdiction of High Court.
Headnote:(A) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 17 and 18—Constitution of India—Articles 226/227—Maintainability of appeal—Alternative remedy—Existence of alternative remedy is not an absolute bar—Remedy of writ is an absolutely discretionary remedy—High Court has always discretion to refuse to grant any writ if it is satisfied that aggrieved party can have an adequate or suitable relief elsewhere—Court, in extraordinary circumstances may exercise power if it comes to conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (Paras 14 and 22)
(B) Constitution of India—Articles 226/227—Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 17 and 18—Appeal—Alternative remedy—When an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke extra ordinary jurisdiction of High Court to issue a prerogative writ as writ jurisdiction is meant for doing justice between parties where it cannot be done in any other forum—Petitioners have rushed directly to High Court and have by-passed statutory alternative remedy which is not permissible—Writ petition dismissed on ground of availability of alternative statutory remedy—Petitioners may raise pleas before appellate court. (Paras 25 to 27)
Result: Petition dismissed.
Dr. Devendra Kumar Arora, J.—On 2.9.2016, while entertaining the writ petition, this court directed for issuance of notice to opposite party nos. 1 to 5 and 8 and directed for listing of the matter today.
2. Today, learned counsel for the petitioner has filed today the affidavit of service, which is taken on record.
3. Sri Imran Khan, Advocate has filed power on behalf of opposite party no. 1 whereas Sri Nitesh Kumar Tripathi has filed fresh Vakalatnama on behalf of opposite party no. 2.
4. Heard Sri Prashant Kumar, learned counsel for the petitioners, Sri Imran Khan, learned counsel for the opposite party no. 1, Sri Nitesh Kumar Tripathi & Sri Avdhesh Shukla for the UCO Bank, Sri N.K. Seth, learned Senior Advocate assisted by Sri Sachin Garg and Sri Alok Saran holding brief of Sri Akhilesh Kalra.
5. In the instant writ petition, petitioners have assailed the order dated 08.08.2016 passed by Debts Recovery Tribunal, Lucknow in the Securitization Application No. 157 of 2015 whereby the Tribunal has allowed the preliminary objection raised by the respondent no.6 (auction-purchaser) regarding maintainability of Securitization Application and rejected the same as not maintainable.
6. From the impugned judgment, it comes out that on the application under Section 17 of the Act moved by the petitioner before the Debts Recovery Tribunal, respondent no.6 [auction-purchaser] moved an application dated 22.5.2015 about the maintainability of Securitization Application. The Tribunal has observed that the learned Counsel for the petitioners/applicants have not filed any rejoinder in reply to preliminary objection. However, they orally objected to the preliminary objection and it was urged during oral arguments that the Securitization Application under Section 17 of the SARFASI Act, 2002 is maintainable. However, Sri N.K. Seth, learned counsel for the Auction-Purchaser (opposite party no.6) has submitted that no rejoinder to the preliminary objection was ever served, and, therefore, he is unable to say anything about filing of the rejoinder to the preliminary objection as alleged by the petitioners before the learned Tribunal.
7. At the out set, Sri N.K.Seth has raised a preliminary objection with regard to the maintainability of the present writ petition on the ground that petitioners have remedy of filing appeal before the Appellate Tribunal under Section 18 of the Act and submitted that the writ petition is liable to be dismissed on the ground of availability of alternative remedy.
8. To strengthen the aforesaid arguments, learned counsel has placed reliance upon the judgment of this Court reported in Umang Gyanchandani v. Debts Recovery Tribunal Lucknow and others,[2015 (33) LCD 1986], Union Bank of India v. Satyavati Tandon,(2010) 8 SCC 110, Kanhaiya Lal Sachdev v. State of Maharashtra (2011) 2 SCC 782 and General Manager Sidheshwara Cooperative Bank v. Iqbal and others (2013) 10 SCC 83.
9. In reply to the aforesaid preliminary objection, Sri Prashant Kumar, learned counsel for the petitioners while fairly admitting that there is a provision of filing appeal against the order dated 08.08.2016 passed under Section 17 of the Act before the Appellate Tribunal in view of the provisions of Section 18 of the Act but vehemently contended that learned Tribunal has committed manifest error by not appreciating the rejoinder submitted by the petitioners to the preliminary objections of Auction Purchaser (opposite party no. 6) and has wrongly relied upon the findings of Debts Recovery Tribunal given in Transfer Application no. 128 of 2002 and observed that the issue cannot be adjudicated in the Securitization Application as the same is barred by the principle of res-judicata overlooking the fact that the order of Debts Recovery Tribunal passed on the transfer application no. 128 of 2002, is presently pending before this Court at Allahabad and, therefore, the present writ petition is maintainable.
10. It has been urged that with regard to making coun
