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2011 Supreme(MP) 538
2011 (3) JLJ 441
Sujoy Paul, J.
Kasturi Devi Jain (Smt.)
v.
Union Bank of India and others
Writ Petition No. 1494 of 2011 (Gwalior);
Decided on : 27.7.2011.
R.K. Goyal for petitioner;
Pravin N. Surange for respondent/Bank.
Headnote:(1) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.13(2) and 37 -- Civil P.C., 1908 -- 0.21 R.11 -- respondent/Bank preferred execution proceedings under 0.21, R.11 CPC -- Bank can also take recourse of the remedy provided under section 13(2) of the Act -- doctrine of election is not applicable in such case.
Held : The provisions of the SARFAESI Act and the rules made thereunder are in addition to and not in derogation of the other laws. So, the remedy provided under the Act is an additional remedy which is unless barred by the Statute can be enforced at any point of time. (2007)139 Comp. Cases 169 (SC), (2010)8 SCC 110, AIR 2004 SC 2371 and (2008)1 SCC 125 followed. (2007)135 Comp. Cases 514 (Mad.) relied on.
[Paras 11, 12, 13 & 14]
(2) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -- Ss.37 and 17 -- where question of limitation is involved -- remedy of appeal is available under section 17 of the Act. (2007)4 MLJ 245 relied on. [Para 20]
(3) Constitution of India -- Art.226 -- where statutory remedy is available -- writ jurisdiction cannot be invoked. (2010)8 SCC 110 followed. [Paras 17 & 18]
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1. Learned counsel for the petitioner submits that the respondent No.1 Union Bank of India filed a civil suit before Fourth Additional District Judge, Morena for recovery of term loan. The said suit was decreed in favour of the Bank with direction to the present petitioner to pay Rs.4,57,543/- within six months along with interest @ 17.35% per annum. It is a further directed that if the aforesaid amount is not paid, the mortgaged property can be auctioned and a final decree can be passed in this regard. This document is filed as Annexure P-1.
2. Admittedly, the petitioner and respondents No.3 and 4 have not paid the said amount and, therefore, the respondent No.1-Bank preferred an application under Order 21 rule 11 of CPC, which was allowed by order dated 13.4.2006 (Annexure P-2) and the Bank was permitted to auction the property.
3. Against the order (Annexure P-3) a Civil Petition No.105/2006 was filed by the petitioner before this Court and this Court vide order (Annexure P-3) dated 22.4.2010 quashed and set aside the preliminary decree/order dated 6.5.2006. The relevant portion of the order passed by this Court reads as under:
"17. Consequently, the revision petition is allowed and the impugned order passed by the Executing Court on date 13.4.2006, in Execution Case No.2-A/2000x2004 is set aside and as the Bank has preferred the execution proceedings under Order 21 rule 11 of CPC, without applying for obtaining a final decree, the main Execution application is also rejected on being premature, on the ground that such a preliminary decree would not be executable without obtaining the final decree."
4. Shri R.K.Goyal, learned counsel for the petitioner submits that in the light of the judgment passed by this court, it is not open for the respondents to invoke section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act'). Learned counsel for the petitioner has raised following points while arguing the matter:
“(i) Since the Bank has already invoked the remedy under the Code of Civil Procedure, it is not open for the Bank to take recourse of the remedy under the SARFAESI Act.
(ii) As per section 36 of the SARFAESI Act, the action of the Bank is barred by limitation and, accordingly, the provisions of the SARFAESI Act are not attracted."
5. Per contra, Shri Praveen N.Surange, learned counsel for the Bank submits that there is no infirmity, illegality or impropriety in action of the Bank in invoking section 13(2) of the SARFAESI Act. Learned counsel supports Annexure P-6, whereby the Bank has invoked section 13(2) and published a document in the newspaper.
6. Further stand of the Bank is that the petitioner has not approached this Court with clean hands and suppressed the material facts. The stand of the Bank is that the petitioner has illegally sold the property, which was mortgaged with the Bank. Copy of registered sale-deed is enclosed as Annexure R-1 with the Bank's return. The Bank has relied on the judgment of apex Court in the case of Prestige Lights Limited v. State Bank of India, reported in (2007) 139 Comp. Case 169 (SC). The relevant portion of the said judgment reads as under:
"It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ Court will indeed bear in the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppress relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rest in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ Court would become im
