Judgment · High Court

HON'BLE MR.JUSTICE M.N. BHANDARI Shri Abhay Bhandari for the petitioners. Mrs. Anita Agrawal for the respondents. **** The petitioners are aggrieved by initiation of action by the respondents under the provisions of Securitisation and Recongsturction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, the “Act of 2002”). It was urged that though the matter is pending consideration before the Debt Recovery Tribunal but the respondents have invoked the provisions of Act of 2002 thus, the respondents have intended to take simultaneous proceedings in regard to one cause. It was then submitted that this Court passed the interim-order restraining the respondents to initiate two simultaneous proceedings inasmuch as, when the matter is pending before the D.R.T., the respondents should not be permitted to proceed under the Act of 2002. The petitioners have further submitted that even the matter is required to be looked from another angle inasmuch as limitation for initiating SBCWP NO.7778/04.

SBCWP NO.7779/04. SBCWP NO.7783/04. 2 necessary proceedings under the Act itself is over and the proceedings being time barred, the respondents should not be allowed to proceed with under the provisions of the Act of 2002. Learned counsel for the respondents on the other hand, referring to the judgment of the Hon'ble Supreme Court reported in (1) 2007 B.C. 33 (S.C.) p.33 : Transcore Vs. U.O.I. & Anr. submitted that in view of the judgment of the Apex Court in the aforesaid case, simultaneous proceedings under the D.R.T. Act as well as Act of 2002 can be undertaken. Referring to para 49, it was stated that the Hon'ble Supreme Court has permitted simultaneous proceedings under both the provisions. It was therefore prayed that the present writ petitions are not having merit on the issue raised apart from the fact that the petitioners are having remedy of appeal under Section 17 of the Act of 2002 however, without exhausting the said remedy, the present petition has been filed.

So far as the issue of limitation is concerned, learned counsel for the respondents seriously disputed and submitted that their proceedings are not barred by limitation. Looking to the fact that in view of the judgment of the Hon'ble Apex Court in the matter supra, simultaneous proceedings under the D.R.T. Act as well as Act of 2002 can be undertaken though learned counsel for petitioner submits that the SBCWP NO.7778/04. SBCWP NO.7779/04. SBCWP NO.7783/04. 3 proceedings under the Act of 2002 is permissible only on certain contingencies as given by the Hon'ble Apex Court in para 48. Whatever may be the issue the fact remain that the petitioner is having remedy of appeal under Section 17 of the Act of 2002 however, without exhausting those remedies, petitioner has directly approached this court by invoking extraordinary jurisdiction of this court under Article 226 of the Constitution of India.

In view of the aforesaid, without going into the issues raised by either parties, the writ petition is not found to be maintainable in view of the fact that the petitioner is having an alternative remedy under Section 17 of the Act of 2002 by filing appeal. For the reasons aforesaid, this writ petition cannot be maintained but looking to the further fact that an interim-order was passed by this court in favour of the petitioner and in view of the prayer made by the petitioners that even if they are going to avail the remedy of appeal under the provisions of Act of 2002, protection may be given so that they may effectively exhaust the remedies as are available to them. Looking to the prayer made and for the reasons given above, though the writ petition is not maintainable therefore, same is dismissed. However, petitioners would be at liberty to avail the remedy as SBCWP NO.7778/04. SBCWP NO.7779/04. SBCWP NO.7783/04. 4 is available to them under Section 17 of the Act of

2002. They would further be at liberty to raise all the questions which have been raised in the present writ petition or in other writ petitions which is relevant to the present issue in reference to the judgment supra. It is expected from the respondents that they will not take objection regarding maintainability of appeal as it is at their instance that the present writ petition was not held to be maintainable. The appellate authority will decide all the issues so raised in the present writ petition or raised in the appeal. The appellate authority will try to decide the appeal within a period of 60 days from the date of receipt of certified copy of this order. The issue of limitation in filing appeal would be decided after taking view of fact that petitioners were bonafidely pursuing their remedies through this writ petition. However, as a interim-measure the stay order passed by this Court on 4/11/2004 is extended for an another period of two months. With the above, the writ petitions are disposed of. (M.N. BHANDARI), J.