Sabitadevi v. A.Satish Kumar & another

Order

In this Civil Revision Petition, assailed order dated 16-11-2012 passed in I.A.No.343 of 2012 in O.S.No.2306 of 2012 on the file of the Court of XXI Junior Civil Judge, City Civil Court, Hyderabad (I.A).

The petitioner herein is also the petitioner in the I.A. and plaintiff in the suit whereas the respondents herein are also the respondents in the I.A. and defendants in the suit. The petitioner filed the suit for restraining the respondents from proceeding with the sale of his mortgaged property under the relevant provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act’” on the ground that the bank issued notice dated 18-11-2011 under Section 13(2) of the SARFAESI Act without disclosing that it would be proceeding against his share certificates for the realization of the corresponding loan amount. But ultimately the bank issued notice under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 (for short “the Rules”) disclosing that it was intending to proceed against the shares of the petitioner listed to a tune of Rs.19,00,000/- which would not be tenable. Further in those circumstances the petitioner got every right to maintain the suit for injunction on the ground that the shares sought to be transferred or sold were not covered by the notice under Section 13(2) of the SARFAESI Act. On the same ground the I.A. was filed under Order 39 Rules 1 and 2 C.P.C. for granting temporary injunction pending disposal of the suit accordingly but the Court below after hearing the parties dismissed the I.A. on the ground that the petitioner had to approach the Debt Recovery Tribunal under Section 17(1) of SARFAESI Act for the redressal of his grievance. By virtue of Section 16 of Recovery of Debts Due to Banks & Financial Institutions Act, 1993, no order of the Central Government appointing any person as the Presiding Officer of a Tribunal or Chairperson of an Appellate Tribunal shall be called in question in any manner, and no act or proceeding before a Tribunal or an Appellate Tribunal shall be called in question in any manner on the ground merely of any defect in the constitution of a Tribunal or an Appellate Tribunal. By virtue of Section 17(1) thereof, a Tribunal shall exercise, on and from the appointed day, the jurisdiction, powers and authority to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions. Thereby the Tribunal shall exercise the question of jurisdiction, powers and authority to entertain and decide all such applications from the banks and financial institutions for the recovery of debts due to such banks and financial institutions. SARFAESI Act provides for effective and efficacious remedy under Sections 17 and 18 of the Act; original application under Section 17(1) and appeal under Section 18 to Debts Recovery Tribunal (DRT) and Debts Recovery Appellate Tribunal (DRAT) respectively. They are vested with wide powers and can nullify and cure any arbitrary action by banks/FIs pursuant to Section 13(4). In cases arising under SARFAESI Act, the Supreme Court laid down that if any borrower and a third party got any tangible grievance against notice under Section 13(4) or action taken under Section 14, such person should avail the remedy by filing an application under Section 17(1) of the Act and the High Court should not entertain a petition under Article 226 of the Constitution of India (United Bank of India V. Satyawati Tondon [1] and Kanaiyalal Lalchand Sachdev V. State of Maharashtra [2] ) In Satyawati Tondon’s case (1 supra), the position was elucidated as follows: “There is another reason why the impugned order should be set aside. If respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.” In Kanaiyalal Lalchand Sachdev’s case (2 supra), Satyawavi Tandon’s case (1 supra) was quoted with approval. The order of the Bombay High Court dismissing the writ petition challenging the dispossession of the appellants from the secured properties under SARFAESI Act was affirmed observing as follows: “We are in respectful agreement with the above enunciation of law on the point. It is manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4), and therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT. …….. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Sectiofn 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person (See Sadhana Lodh V. National Insurance Co. Ltd ((2003) 3 SCC 524, Surya Dev Rai v. Ram Chander Rai ((2003) 6 SCC 675), and SBI V. Allied Chemical Laboratories ((2006) 9 SCC 252). Therefore, the petitioner has to approach the Debt Recovery Tribunal concerned under Section 17(1) of the SARFAESI Act if he is aggrieved by the notices issued by the respondents. The Court below properly appreciated the matter and rightly dismissed the I.A. I do not find any grounds to interfere with the order passed by the Court below. In the result, the Civil Revision Petition is dismissed. No costs. Consequent upon the dismissal of the C.R.P., miscellaneous petitions pending, if any, shall stand closed. Date: 14-12-2012 YCR _________________________ G. KRISHNA MOHAN REDDY, J [1]