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2015 Supreme(All) 3386
ALLAHABAD HIGH COURT
Devendra Kumar Arora, J.
Umang Gyanchandani - Appellant
Versus
Debts Recovery Tribunal Lucknow and Others - Respondent
Writ Petition No. 3652 of 2015 (M/S)
Decided On : 02-07-2015
For the Petitioner:- Sachin Garg
For the Respondent:- Prashant K. Srivastava
The availability of an alternative statutory remedy under the 2002 Act precludes the direct invocation of the High Court's writ jurisdiction.
Headnote:
2002 Act - Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act - Availability of Alternative Statutory Remedy
Fact of the Case:
The petitioner challenged an order passed by the Debts Recovery Tribunal and sought quashing of an auction sale notice under the 2002 Act. The respondent raised a preliminary objection regarding the maintainability of the writ petition, citing the provision for filing an appeal under Section 18 of the 2002 Act.
Finding of the Court:
The court dismissed the writ petition on the ground of the availability of an alternative statutory remedy, emphasizing that the petitioner should have pursued the remedy provided under the 2002 Act before approaching the High Court directly.
Issues: Maintainability of the writ petition in light of the availability of an alternative statutory remedy under the 2002 Act.
Ratio Decidendi: The court relied on precedents and established legal principles to emphasize that the remedy of writ is discretionary and should be pursued only when no adequate relief is available elsewhere. It highlighted that the petitioner bypassed the statutory alternative remedy, which was impermissible.
Final Decision: The writ petition was dismissed, and the petitioner was advised to raise the pleas before the appellate court and move appropriate applications for recall/review of the order.
Dr. Devendra Kumar Arora, J.
Heard Shri N.K. Seth, Senior Advocate assisted by Shri Sachin Garg, learned counsel for the petitioner and Shri Prashant K. Srivastava, learned counsel appearing on behalf of opposite parties no. 2 and 3.
2. By means of present writ petition, the petitioner has inter alia challenged the order dated 26.06.2015 passed by the Debts Recovery Tribunal, Lucknow in SA No. 448 of 2014 (Umang Gyanchandani Vs. Authorised Officer, Bank of Baroda and others) under Section 17 of the Securitization and Reconstruction of financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "2002 Act"). Petitioner has further sought quashing of the auction sale notice dated 26.06.2015 issued under Section 13(4) of the 2002 Act.
3. Shri Prashant K. Srivastava, learned Counsel for opposite parties no. 2 and 3 raised a preliminary objection with respect to maintainability of present writ petition on the ground that as per provisions of Section 18 of 2002 Act there is a provision for filing appeal by any person aggrieved by any order made by the Debts Recovery Tribunal under Section 17 of 2002 Act. Therefore, the present writ petition is not maintainable.
4. Shri N.K. Seth, learned counsel for the petitioner submits that since the Central Registry of Securitization Asset Reconstruction and Security Interest of India (CERSAI) on 01.07.2015 provided information to the petitioner to the effect that as per available record, the date of creation of security under CERSAI by the Bank of Baroda is 24.06.2015 and as such all the proceedings initiated against the petitioner by the Authorized Officer of the Bank stood vitiates. Moreover, fraud has also been played before the Debts Recovery Tribunal while opposing application bearing SA No. 448 of 2014 of the petitioner as the Authorized Officer of the bank placed before the Tribunal a document, showing date of creation of security as 26.04.2012 (page 253 of the writ petition). It is also submitted that the borrower has also diverted funds to M/s Maruti Corporation and even funds were diverted by the opposite party no. 5 while he was detained in Jail.
5. Admittedly, there is a provision of filing appeal before the Appellate Tribunal by any person aggrieved by any order made by the Debts Recovery Tribunal under Section 17 of 2002 Act. It is always open for the petitioner to make application for recall/review of order dated 26.06.2015 if he finds that any fraud has been played by the Authorized Officer of the bank.
6. In the case of L. Chandra Kumar Vs. Union of India and others, reported in AIR 1997 SC 1125 , a seven Judges Constitution Bench of Hon'ble Supreme Court held as under: -
"Though judicial review in the basic feature of the Constitution, the vesting of power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court."
7. In the case of Central Coalfields Ltd. vs. State of Jharkhand and others (2005) 7 SCC, 492, it has been held that :
"If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should not be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy."
8. In the case of Kanhaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others, (2011) 2 SCC 782 the Hon'ble Supreme Court on the question of alternative remedy/exhaustion of remedies held that Articles 226/227 not available if an efficacious alternative remedy is available to aggrieved person
Thus, by a series of decisions it has been settled that the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ, if it is satisfied that the aggrieved party can have an ad
