2015 Supreme(Raj) 596
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
P.K.LOHRA, J.
U.N. Automobiles Pvt. Ltd. & Ors. - Petitioners
Vs.
Bank of Baroda - Respondent
S.B.CIVIL WRIT PETITION NO.3328/2015
Decided On : 19.11.2015
Advocate Appeared:
Mr.L.R.Mehta with Mr.Ramit Mehta for the petitioners
Mr.R.K.Salecha for the respondent-Bank
Headnote:
Constitution of India,1950 - Article 226 & 227 - Arbitration and Conciliation Act, 1996 - Sections 8, sub-section (6) of Section 11 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 13(2) and 13(4) - SARFAESI Act - Section 35 - Indian Contract Act - Sections 16, 16(1) (b) - English Arbitration Act, 1996 - Section 15 - Recovery of Debts Due to Banks and Financial Institutions Act, 1993 - Sections 19, Section 2(g) - Staying the proceedings - Ancillary reliefs - Enforcement of security - Certificate of Recovery - Notice - Apposite for the purpose of writ petition are that the respondent-Bank submitted an Original Application (for short the OA) before the DRT, Jaipur under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 as principal amount as outstanding - Future at rate of interest per annum with monthly rests on the Principal amount relating to the facilities stated hereunder in favour of the applicant-Bank against all the Defendant Nos.1 to 3 jointly and severally till the date of actual and final realization besides all costs and expenses incurred/to be incurred - respondent-Bank was registered - On receipt of the notices of aforesaid OA, the petitioners preferred an application dated 30.04.2014 under Section 8 of the Act of 1996 read with Section 22 of the Act of 1993 which was registered as IA No.70/2014. In the application, it is, inter alia – Held, Petitioners appears to be quite alluring but not of substance - Contract can be categorised as unconscionable if it is unfair, unreasonable and opposed to the public policy at loss to say that how and in what manner, the respondent-Bank has acted unfairly, unreasonably and de hors the public policy in keeping the privilege to refer the dispute for arbitration without making it bilateral. In totality, by keeping this option unilateral at its own discretion, the respondent-Bank is a financial institution, in my considered opinion, has not acted unreasonably, unfairly or against the public policy - Financial institution which is carrying on business of collecting, investing, lending funds is well within its right to carve out ways and means for settlement of commercial transactions with its borrowers. Assuming it without admitting the same that if there had been no such clause in the hypothecation agreement, could such plea be raised by the petitioners to invoke the doctrine prudent answer to the said query - examining thoroughly the impugned order, am unable to find any manifest error in the impugned order which is apparent on the face of record requiring interference by exercising certiorari jurisdiction of this Court - Writ petition and the same is, therefore, dismissed
Petitioners have filed this writ petition under Article 226 & 227 of the Constitution of India to assail the impugned order dated 29.01.2015 (Annex./18) passed by the Debts Recovery Appellate Tribunal, Delhi (for short 'the DRAT') and has further prayed for staying the proceedings in Original Application No.10/2014 pending before the Debts Recovery Tribunal, Jaipur (for short 'the DRT'). A further prayer is made for allowing application of the petitioners under Section 8 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') with other ancillary reliefs.
The facts apposite for the purpose of this writ petition are that the respondent-Bank submitted an Original Application (for short 'the OA') before the DRT, Jaipur under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act of 1993') seeking issuance of recovery certificate for the amount of Rs.56,44,88,716/-(Rupees fifty six crores forty four lacs eighty eight thousand and seven hundred sixteen only) as principal amount as outstanding on 20.11.2013 with interest, costs and expenses thereon. That apart, following other reliefs were also prayed for:-
“ii) award interest pendentelite and future at rate of interest per annum with monthly rests on the Principal amount relating to the facilities stated hereunder in favour of the applicant-Bank against all the Defendant Nos.1 to 3 jointly and severally from 21.11.2013 till the date of actual and final realization besides all costs and expenses incurred/to be incurred:
Nature of Facility
Total Amount payable as on 20.11.2013 (Rs.)
Further interest to be paid on the respective balance outstanding stated under column (C) @ per annum stated hereunder to be calculated on monthly rest
Corporate Loan I
14,68,21,300
15.75
Corporate Loan II
2,35,70,869
15.75
Cash Credit Account (relating to Commercial Vehicle segment)
30,17,91,516
15.75
Cash Credit Account (relating to Passenger Car segment)
9,23,05,031
15.75
Total
56,44,88,716
iii) without prejudice to the on going proceedings under SARFAESI Act, 2002 for enforcement of security interest in the assets particulars of which have been given in Schedule A to L hereto, to realise the dues as per the Certificate of Recovery, by sale of properties of Defendant No.1 to 3, the particulars of which have been stated in Schedule “A to L” annexed hereto. iv) realize the dues as per Certificate of Recovery from the moveable assets of Defendant No.1 hypothecated to the applicant-Bank. v) award costs of this application to the applicant Bank, and vi) award such other and further relief/s, as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the applicant Bank.”
The OA preferred by the respondent-Bank was registered as OA No.10/2014. On receipt of the notices of aforesaid OA, the petitioners preferred an application dated 30.04.2014 under Section 8 of the Act of 1996 read with Section 22 of the Act of 1993 which was registered as IA No.70/2014. In the application, it is, inter alia, averred by the petitioners that hypothecation agreement dated 10.06.2010 stipulates reference of dispute arising under the agreement to the arbitration by virtue of clause 9.2 and 11.2 and such award and decision given shall be valid and binding on the parties. By romping in aforesaid clauses of hypothecation agreement, the petitioners sought dismissal of OA in view of Section 8 of the Act of 1996 and craved for referring the dispute to the arbitration. The respondent-Bank without filing reply to IA straight away argued it. The learned DRT by relying on clause 11.2 of hypothecation agreement dated 10.06.2010 and a Full Bench Judgment of Delhi High Court in HDFC Bank Ltd.Vs. Satpal Singh Bakshi (201