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2022 Supreme(All) 680
IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI J.
M/s Ramom Motion Auto Corp. Pvt. Ltd – Petitioner
Versus
Debt Recovery Appellate Tribunal – Respondent
Matters Under Article 227 No. 2135 of 2022
Decided On : 13-06-2022
Advocate Appeared:
For the Petitioners: Abhishek Khare, Pritish Kumar.
For the Respondent: Prashant Kumar Srivastava.
Headnote:
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Sections 13 (2), 14 and 17 - Constitution of India, 1950 - Article 226 - Recovery of amount – Availability of alternate remedy - Power of High Courts to issue certain writs - Alternative remedy available before the DRAT has proved not to be an efficacious remedy. Even otherwise, existence of an alternative remedy is not an absolute bar against this Court’s discretionary jurisdiction under Article 226 of Constitution - Circumstances of case warrant interference by this Court in exercise of its extraordinary jurisdiction - Petitioners are dispossessed from their property after commencement of the final arguments and before conclusion of same and passing of a final verdict, it would occasion a failure of justice. (Para 26)
Finding of the Court: DRT had granted an interim protection to the petitioners by means of the order, which has been vacated by means of the order passed by the DRT merely by recording the submissions of the parties and without recording any finding or satisfaction of its own and keeping in view the fact that the final arguments in the case have already commenced and the same are going on and the case has been fixed for hearing further arguments, this Court finds that in case the petitioners are dispossessed from their property after commencement of the final arguments and before conclusion of the same and passing of a final verdict, it would occasion a failure of justice.
Result: Writ Petition partly allowed.
JUDGMENT :
SUBHASH VIDYARTHI J.
1. Heard Sri Sudeep Kumar, Advocate alongwith Sri Abhishek Khare, Advocate, the learned Counsel for the petitioners and Sri Prashant Kumar Srivastava, Advocate, the learned counsel for the respondent No. 3 and 4.
2. Briefly stated, the facts of the case are that the petitioners had taken a financial assistance from the Indian Overseas Bank, Main Branch, Lucknow (respondent No. 3). The respondent No. 3 has initiated proceedings for recovery of the aforesaid amount under provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as “SARFAESI Act”), against which the petitioners had filed Securitisation Application No. 113 of 2017 before the Debts Recovery Tribunal, Lucknow (herein after referred to as “DRT”) in which the DRT had granted an interim protection to the petitioners, Thereafter the respondent Bank had withdrawn the action initiated against the petitioners. The respondent-Bank again initiated proceedings for recovery of certain amount by issuing the notice dated 05.03.2018 under Section 13(2) of the SARFAESI Act to the petitioners. The petitioners submitted a reply on 31.03.2018 but without disposing off the reply, the Bank issued a possession notice dated 24.08.2018. The petitioners have challenged the aforesaid demand notice dated 05.03.2018 and possession notice dated 24.08.2018 before the DRT in Securitisation Application No. 186 of 2019 and the DRT had stayed the recovery proceedings by means of an order dated 12.03.2019.
3. The petitioners have further stated that meanwhile Sri O.P. Agarwal who was Director of the petitioner No. 1 Company, died on 27.05.2019 and the petitioners moved an application for substitution, which was allowed by means of an order dated 18.09.2019. The Securitisation Application No. 186 of 2019 was dismissed as being time barred by means of an order dated 29.10.2021 and an application for review of the aforesaid order is pending before the DRT.
4. The petitioners have further stated that meanwhile the respondent-Bank filed an application under Section 14 of the SARFAESI Act before the District Magistrate, Lucknow and on 28.03.2022, the Additional District Magistrate (Administration), Lucknow passed an order on the said application for taking possession of the petitioners' property.
5. The petitioners had challenged the order dated 28.03.2022 by filing Writ (C) No. 2192 of 2022 and this Court had passed an order dated 20.04.2022 directing the petitioners to challenge the aforesaid orders before the DRT under Section 17 of the SARFAESI Act.
6. The petitioners then filed Securitisation Application No. 249 of 2022 before the DRT in which notices were issued to the respondent-Bank. During pendency of the said application, on 22.04.2022, the Sub Divisional Magistrate, Sadar, Lucknow issued a letter to the Inspector, Police Station Ghazipur, Lucknow directed him to take possession of the petitioners’ property. The petitioners filed an application for interim relief, upon which the DRT passed an order on 28.04.2022 restraining the Bank from taking physical possession of the property till the next date of listing and the matter was posed for 27.05.2022. The aforesaid order was passed in absence of the learned counsel for the Bank and the aforesaid order dated 28.04.2022 contains a subsequent noting that later on learned counsel for the Bank appeared at about 04:00 p.m. and he filed an application for urgent hearing of the matter. Upon which, the matter fixed for 29.04.2022 i.e. the day following the date of the order. On 02.05.2022, the DRT passed an order recording the submission of the learned counsel for the Bank that the loan account has been transferred to Assets Recovery Management Branch of the Bank, which has not been impleaded by the petitioners and the petitioners had not approached the Tribunal with clean hands and they had suppressed the material facts. The Tribunal ordered the
