Devinder Kaur vs Indian Bank - 2023 Supreme(P&H) 2557

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 2557

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
G.S. SANDHAWALIA, HARPREET KAUR JEEWAN, JJ.
Devinder Kaur – Petitioner
Versus
Indian Bank & Ors. – Respondent
CWP NO. 6437 of 2023
Decided On : 29-03-2023

Advocates Appeared:
Mr.L.S. Sidhu, Advocate; For the Petitioner
Mr.Sumit Batra, Advocate, for the caveator/respondent-Bank.

Headnote:(A) Constitution of India - Articles 226 and 227 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Possession notice issuance and recovery of dues - The petitioner challenged a possession notice for an outstanding amount of Rs.96,39,482/- but the court found an alternative remedy available through the Debt Recovery Tribunal (Paras 1-7).

(B) Jurisdiction - Writ courts should refrain from exercising extraordinary jurisdiction when statutory remedies are available, emphasizing the importance of respecting the rights of banks and financial institutions to recover debts (Paras 2, 3, and 6).

Facts of the case:
Petitioner contested a possession notice related to significant outstanding bank dues, prompting the court to evaluate the availability of alternative legal recourse.

Findings of Court:
The court concluded that the petitioner must seek remedy through the Debt Recovery Tribunal, marking the writ jurisdiction as inappropriate in this instance.

Issues: The main question addressed was whether the writ court should intervene despite the availability of alternative statutory remedies.

Ratio Decidendi: The court ruled that statutory remedies must be exhausted before invoking writ jurisdiction, adhering to established jurisprudence which advises against interference with bank recovery processes without full examination (Paras 2-3).

Result: Writ petition disposed of; petitioner directed to approach the Debt Recovery Tribunal.

Table of Content
1. possession notice details and outstanding amount. (Para 1)
2. alternative remedies available via debt recovery tribunal. (Para 2 , 3)
3. high courts must respect statutory remedies. (Para 4 , 5 , 6)
4. petitioner directed to seek recourse to drt. (Para 7)
5. writ petition dismissed, alternative remedy upheld. (Para 8)

JUDGMENT

G.S. Sandhawalia, J. (Oral) - Challenge has been raised in the present writ petition, filed under Article 226/227 of the Constitution of India is to the possession notice issued under Rules 6(2) & 8(6) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the outstanding is Rs.96,39,482/- as per the notice dated 14.02.2023 (Annexure P-6).

2. In our considered opinion, there is an alternative and efficacious remedy available to the petitioner to approach the Debt Recovery Tribunal.

3. Keeping in view the above, we are of the considered opinion that it is not for the Writ Court to exercise its extra-ordinary writ jurisdiction under Articles 226/227 of the Constitution of India, in view of the huge outstanding as the bank is only seeking to recover the same, especially keeping in view the law laid down in United Bank of India v. Satyawati Tondon & others , (2010) 8 SCC 110 . The principles laid down in the said case were also arising out of the proceedings of SARFAESI Act and resultantly discussing the law in detail it was held that as under:-

"27. 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 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.

28. Insofar as this case is concerned, we are convinced that the High Court was not at all justified in injuncting the appellant from taking action in furtherance of notice issued under Section 13(4) of the Act.

29. In the result, the appeal is allowed and the impugned order is set aside. Since the respondent has not appeared to contest the appeal, the costs are made easy."

4. In Union Bank of India and another v. Panchanan Subudhi , (2010) 15 SCC 552 , the High Court had disposed of the writ petition by directing the petitioners to pay a sum of Rs.10 lakhs in installments for liquidating the dues of the appellant-Bank and proceedings were pending before the Debts Recovery Tribunal. During the pendency of the proceedings before the Tribunal, the Bank had issued notices under Section 13 (2) and 13 (4) of the Securitization and Re-construction of Financial Assets and Enforcement of Security Interest Act, 2002 and even the recovery amount had been quantified by the Tribunal. Resultantly, the High Court had been approached, which had directed that the amount be paid in installments. Thereafter, the appeal had been filed before the Apex Court, wherein it was held that there was no justification for the High Court to entertain the writ petition by ignoring the fact a statutory alternative remedy was available to the respondent under Section 17 of the SARFAESI Act. Section 17 reads as under:-

"17. Application against measures to recover secured debts.- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter, 1 [may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within fortyfive days from the date on which such measure had been taken:

Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]

Explanation.-For the remova