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Shree Radha Ballav Gas Station & Another v/s Union Bank of India & Others

    W.P. (C) No. 5210 of 2016

    Decided On, 19 June 2018

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE ANANDA SEN

    For the Petitioners: Souritra Ganguly, Vikramjit Roy, Akshay Verma, Advocates. For the Respondents: P.A.S. Pati, Nandan Prasad, Advocates.



Judgment Text

1. In this writ application, the petitioners have challenged a part of the order dated 14.6.2016 passed in O.A. Case No. 295 of 2013, whereby the Presiding Officer, Debts Recovery Tribunal, Ranchi has treated the extension of mortgage of petitioners’ property for the loan account of M/s. Shree Radha Ballav Horticulture Pvt. Ltd., as claimed by Union Bank of India and has saddled the liability upon the petitioner No. 1. Further, a prayer has been made to direct the Bank to release the property belonging to petitioner No. 1 from the list of mortgaged properties, which is treated to be mortgaged in respect of Loan Account of M/s. Shree Radha Ballav Horticulture Pvt. Ltd. A further prayer has been made orally to stay the auction proceeding in respect of the properties of petitioner No. 1, which is allegedly being undertaken for recovery of the loan amount.

2. An application was filed by the Union Bank of India (hereinafter referred as the ‘Bank’) for recovery of an amount of Rs. 11,46,14,797.49 together with interest and cost against M/s. Shree Radha Ballav Horticulture Pvt. Ltd., Sri Krishna Kumar Lohia @ Krishna Lohia, Smt. Priyanka Lohia, M/s. Shree Radha Ballav Gas Station, and Sri Din Dayal Drolia. This recovery application was filed as the said M/s. Shree Radha Ballav Horticulture Pvt. Ltd. failed to repay the loan amount, i.e., the term loan and the cash credit facility. It was the case of the Bank that the properties and assets of M/s. Shree Radha Ballav Horticulture Pvt. Ltd. was hypothecated with the Bank. Not only the assets of M/s. Shree Radha Ballav Horticulture Pvt. Ltd. was hypothecated but the properties of the petitioner herein, i.e., M/s. Shree Radha Ballav Gas Station was also pledged with the Bank as a security for the term loan and cash credit facility, which was availed by M/s. Shree Radha Ballav Horticulture Pvt. Ltd. M/s. Shree Radha Ballav Gas Station is a partnership firm having its own assets. The partners of the said firm are Smt. Priyanka Lohia and Shri Din Dayal Drolia. Said Priyanka Lohia is also a Director of M/s. Shree Radha Ballav Horticulture Pvt. Ltd. As M/s. Shree Radha Ballav Horticulture Pvt. Ltd. failed to liquidate the loan amount, an application was filed by the Bank before the Debts Recovery Tribunal agai

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nst all the defendants mentioned above for recovery. The said application was numbered as O.A. No. 295 of 2013. The said case was adjudicated and a final order was passed by the Presiding Officer, Debts Recovery Tribunal, Ranchi on 14.6.2016, whereby the original application was allowed in favour of the Bank. It was ordered that the defendants should pay the dues within a period of two months from the date of judgment, failing which the Bank is entitled to sell the mortgaged property and/or sell the personal movable/immovable property of defendant Nos. 1, 2 and 3. Recovery certificate was ordered to be issued immediately. The defendants were further restrained/ injuncted from transferring, alienating or to encumber their assets. Aggrieved by the said final order passed by the Presiding Officer, Debts Recovery Tribunal, Ranchi the petitioners have filed this writ application challenging the same.

3. Before the Counsel for the petitioner started arguments on merits, a preliminary objection was raised, by the Counsel appearing for the Bank, stating that this writ application under Article 226 of the Constitution of India is not maintainable as there is an alternative remedy, by way of a statutory appeal available to the petitioners. He submits that since there is a statutory Appellate Forum, the petitioners should have approached the Appellate Authority and without exhausting the remedy of appeal, they could not have invoked the power of this Court by filing an application under Article 226 of the Constitution of India. He submits that whatever may be the objection of the petitioners in relation to the order passed by the Debts Recovery Tribunal, the same can very well be agitated before the Appellate Forum, which is the best Forum to appreciate the issue involved, based upon the records. He submits that to examine the impugned order and to come to the conclusion whether the same is correct or not, the entire Lower Court Records has to be called for and only after going through the evidence led by the Bank and the defendants and going through all the documents, an independent conclusion can be arrived at. It is sub-mitted that for that purpose, it is only the Appellate Authority, who can appreciate/re-appraise the evidence and come to an independent conclusion. He submits that only on the basis of a few documents, which have been filed along with this writ application, this case cannot be decided. He, thus, submits that since there is an alter-native, efficacious remedy available to the petitioner by way of a statutory appeal, this Court should not entertain this writ application.

4. To counter these submissions, learned Counsel appearing on behalf of the petitioners, submits that availability of an alternative remedy is not an absolute bar in entertaining a writ application. He submits that when there is a grave injustice caused to a party, which is apparent from the face of the record, the High Court can very well exercise its jurisdiction under Article 226 of the Constitution of India and interfere with the order, which is per se illegal. He submits that in the instant case, the petitioner, i.e., M/s. Shree Radha Ballav Gas Station or its partners, i.e., Smt. Priyanka Lohia and Din Dayal Drolia, have never executed any document to mortgage the property of the petitioner No. 1, with the Bank, for the loan availed by M/s. Shree Radha Ballav Horticulture Pvt. Ltd. and that being so, the property belonging to M/s. Shree Radha Ballav Gas Station could not have been treated as mortgaged property nor could have been attached or directed to be auctioned for recovery of the loan amount. Learned Counsel then contends that before the Debts Recovery Tribunal, the Bank had heavily relied upon an alleged affidavit signed on 10.3.2008 (Page 44 of the writ application) by which the Bank claimed that the assets of M/s. Shree Radha Ballav Gas Station was mortgaged and was kept as security for the loan availed by M/s. Shree Radha Ballav Horticulture Pvt. Ltd., but, the said document is a forged one and the signatures upon the same are not of Din Dayal Drolia and Priyanka Lohia. He submits that the Debts Recovery Tribunal did not consider the said objection of the petitioners in true perspective and gave a very vague and unpalatable reasoning for not accepting the said objection. Learned Counsel submits that the petitioners before the Debts Recovery Tribunal, had filed a report of an expert, as per whom, the said document was a forged/manufactured one, but, the Debts Recovery Tribunal brushed aside the report by holding that since the Tribunal had not called for the said report, the same cannot be looked into. Learned Counsel for the petitioners then tries to impress upon this Court by arguing that it was the duty of the Debts Recovery Tribunal to send the said document along with the admitted signatures, to an expert, as the genuinity of the said document was questioned by the petitioner. He submits that by not sending the said document to the handwriting expert, the Tribunal has usurped the jurisdiction vested upon it. It is contended that when the very basis of the claim of the Bank is a forged document, this Court has jurisdiction to entertain this writ application. Learned Counsel further submits that as per the statute, for the purpose of filing an appeal, 50% of the debt amount has to be deposited, which is an unnecessary burden upon the petitioners. In these peculiar circumstances, learned Counsel for the petitioners submits that jurisdiction of this Court under Article 226 of the Constitution of India is the only effective and efficacious remedy for them.

5. To buttress his submissions, learned Counsel for the petitioners relies upon a decision rendered by the Division Bench of the High Court of Karnataka, Dharwad Bench, as reported in 2013 (1) KCCR 299, Hotel Vandana Palace v. Authorised Officer. By referring to the said judgment and highly relying upon paragraph 22 thereof, he submits that the Division Bench of the High Court of Karnataka has concluded that when the person has lost the property in a sale consideration by the Bank for non-payment of more than 5 crores, it is difficult for a person like the appellant to approach the Tribunal to file an appeal by depositing 50% or 25% of the amount. Learned Counsel for the petitioners submits that in this case also the property of these petitioners is being auctioned and to approach the Appellate Forum, one has to deposit 25% — 50% of the debt amount, which is a huge amount and as per the judgment of the High Court of Karnakata in this type of circumstance, a writ petition is maintainable. Learned Counsel for the petitioners further referred to a decision of the Hon’ble Supreme Court of India in Dr. Smt. Kuntesh Gupta v. The Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) & Ors., 1987 (13) ECR 944 (SC) and submits that a writ petition cannot be dismissed on the ground of availability of alternative remedy when the challenged order is without jurisdiction and was a nullity. He submits that usurping the jurisdiction by the Debts Recovery Tribunal is a ground for approaching this Court and the impugned order can be challenged in a writ application. Learned Counsel for the petitioners also refers to a decision of the Hon’ble Supreme Court in Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani & Ors., AIR 1989 SC 1607 and states that mandamus is a very wide remedy and must be easily available to reach the injustice whenever it is found to be done. He submits that the Hon’ble Supreme Court has held that mandamus cannot be denied in a case where there is injustice caused to the petitioner and a writ application cannot be dismissed on the ground of availability of alternative remedy. Learned Counsel for the petitioner then refers to a judgment rendered by the Hon’ble Supreme Court of India in the case of T.K. Rangarajan v. Government of Tamil Nadu and Others, IV (2003) SLT 782=AIR 2003 SC 3032 and by referring to paragraph 5 thereof, he submits that to meet an unprecedented extraordinary situation, the writ remedy can be availed of. He argues that since in this case the document, which forms basis of claim by the Bank, is itself a forged one, the action of the Presiding Officer in passing the order against these petitioners, relying on the said very document goes to the root of the case and thus, can be said to be an extraordinary situation, which can only be corrected by invoking jurisdiction under Article 226 of the Constitution of India. Learned Counsel for the petitioners lastly relies upon a judgment of the Hon’ble Supreme Court of India in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors., VIII (1998) SLT 380=I (1999) CLT 15 (SC)=(1998) 8 SCC 1 and argues that the Hon’ble Supreme Court has held that availability of alternative remedy is not a bar to entertain a writ application under Article 226 of the Constitution of India.

6. On the aforesaid ground and taking support from the judgments cited, the petitioners pray that this writ application is maintainable and the order passed by the Presiding Officer, Debts Recovery Tribunal in the original application needs to be stayed and all consequential actions whereby the properties of the petitioners is sought to be auctioned, should also be stayed, and the opposite parties be directed to file their affidavit and after hearing them this application be allowed.

7. I have heard the learned Counsel for the parties on the preliminary objection. In this case, since there is a preliminary objection raised on the point of maintainability of the writ application, the same needs to be decided at first.

8. The petitioner in this writ application has challenged the final order dated 14.6.2016 passed by the Presiding Officer, Debts Recovery Tribunal in O.A. No. 295 of 2013.

9. Chapter IV of the Recovery of Debts and Bankruptcy Act, 1993 (hereinafter referred to as ‘the Act’) deals with the procedure of the Tribunals. Section 19 under the said Chapter deals with an application to the Tribunal, which says that a Financial Institution or a Bank has to make an application before the Tribunal within whose local limits the jurisdiction falls. In this case, as the jurisdiction was before the Debts Recovery Tribunal, Ranchi, the Bank had approached the said Tribunal for recovery of the outstanding amount by filing an application under Section 19 of the said Act. There is no dispute that the Debts Recovery Tribunal, Ranchi has got power and jurisdiction to entertain the application filed by the Bank and to dispose of the same. The Tribunal, on the application proceeded and after giving an opportunity to the parties including the opportunity of leading evidences, finally decided the application in favour of the Bank.

10. Section 20 of the said Act provides for an appeal before the Appellate Tribunal. Section 20(1) provides as under:

(1) Save as provided in Sub-section (2), any person aggrieved by an order made, or deemed to have been made, by a Tribunal under this Act, may prefer an appeal to an Appellate Tribunal having jurisdiction in the matter.

11. Section 20(2) prohibits filing of an appeal where an order is passed with consent of the parties. Section 20(3) of the Act prescribes the limitation period for filing the appeal, which is 30 days from the date on which the copy of the order is made or deemed to have been made by the Tribunal is received by the aggrieved party. The proviso to the said section gives power to condone the delay. Section 20(4) of the Act gives power to the Appellate Tribunal to pass any such orders as it thinks fit. As per the said section, the Appellate Tribunal may confirm, modify, or set aside the order, which is appealed against. Section 21 of the Act makes it mandatory for the appellant to deposit an amount equivalent to 50% of the amount of debt at the time of filing the appeal. The proviso to the said section gives power to the Tribunal to reduce the said deposit amount.

12. The Recovery of Debts and Bankruptcy Act, 1993, thus, is a self-contained code. From perusal of the provisions mentioned above, especially Section 20 of the Act, I find that a full mechanism has been laid down so far as it relates to filing of an appeal and how it is to be dealt.

13. The Hon’ble Supreme Court, in the case of United Bank of India v. Satyawati Tondon, III (2010) BC 495 (SC)=VI (2010) SLT 52=(2010) 8 SCC 110 while dealing with the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and the question regarding invocation of extraordinary powers under Articles 226 and 227 of the Constitution of India, has held that the High Court ordinarily will not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. The Hon’ble Supreme Court has further held that this rule of not entertaining a writ petition under Article 226, in case where there is an alter-native effective remedy available, applies with a greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of Banks and other financial institutions. It has also been held that before availing the remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. At this juncture, it is necessary to quote paragraph 43 of the said judgment, which reads as under:

“43.Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of Banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.”

14. Further in the said judgment itself, the Hon’ble Supreme Court of India has held that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but a word of caution has been put in paragraph 45 of the judgment wherein the Hon’ble Supreme Court has observed that it is difficult to fathom any reason why the High Court should entertain a petition under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision etc. and the particular legislation contains detailed mechanism for redressal of his grievance.

15. In the case of Siddeshwara Cooperative Bank Ltd. v. Ikbal, VIII (2013) SLT 290=IV (2013) CLT 122 (SC)=(2013) 10 SCC 83, the Hon’ble Supreme Court of India in paragraph 27 has held that on misplaced consideration statutory procedure cannot be allowed to be circumvented. The judgment of the Hon’ble Supreme Court in the case of Whirlpool Corporation (supra) clearly lays down that where the impugned action/order is wholly without jurisdiction, where there is a violation of principles of natural justice, there is a violation of fundamental rights or where the vires of an Act is challenged, the bar of alternative remedy will not come in the way of a party to file a petition under Article 226 of the Constitution.

16. This Court feels that to entertain a writ application in such cases where there is an alternative remedy, exceptional good and strong grounds for entertaining the same must be made out. In this case, I find that the grounds taken by the petitioner for approaching this Court by circumventing the statutory remedy of appeal available to them is not strong enough to call for an exercise of jurisdiction by this Court under Article 226 of the Constitution of India. Petitioners claim that the document, which the Bank had relied upon, is forged. Whether this document is forged or not that cannot be decided in a writ application under Article 226 of the Constitution of India, moreso, when evidence was led by the parties before the Debts Recovery Tribunal. Further, there are several documents which need to be looked into in order to decide all the issues raised by the parties. Thus, without calling for the lower Court Records and without going through the Lower Court Records and the evidences, which were led by the parties and the documents filed by them, the issues raised by the petitioners cannot be decided. Further, the alleged omission by the Tribunal in not sending the document to expert cannot be said to be usurping of jurisdiction. Even if it is held that the reason put forth by DRT is wrong or is cryptic or even if it is unpalatable, the same cannot be a ground to approach the High Court by filing a writ petition under Article 226 of the Constitution of India, bypassing the Appellate Forum. The Appellate Forum can very well re-appraise the reasonings, based on all the other documents which can only be done in an appeal. Whether the given reason is good or bad that has to be decided by the Appellate Forum and not by the High Court sitting in writ jurisdiction under Article 226 of the Constitution of India. What the petitioners are seeking and what they argue in this writ application, could have very well been argued before the Appellate Forum.

17. As observed earlier, the Recovery of Debts and Bankruptcy Act, 1993 is a self-contained code containing provisions for filing an appeal by the aggrieved party and upon filing of such appeal, the Appellate Tribunal can set aside, modify or even vary the order appealed against. This Court feels that in this case, where a decision has to be arrived at after going through the entire lower Court records and the evidence needs re-appraising, the Appellate Forum is the only remedy which should have been availed by the petitioner at this stage. This Court cannot sit in an appeal while deciding the correctness of the final order passed by Debts Recovery Tribunal nor can reappraise the evidence. On the basis of some of the documents annexed with this writ application, the claim of the petitioners and its rebuttal by the respondents, cannot be decided. This is a case where all the pleadings, evidences and the documents have to be scrutinized. It is not a case where the Debts Recovery Tribunal has got no jurisdiction either to entertain the application of the Bank or to pass a final order.

18. The plea taken by the petitioners that they have to deposit 25% — 50% of the debt amount at the time of filing the appeal, which will put them in a disadvantageous position, cannot be a ground for circumventing the statutory provisions. Some of the provisions of a statute may be harsh to some of the litigants, but, that cannot be a ground to circumvent the other provisions laid down in the said statute or to make the said provisions null and void.

19. Thus, in my view, it is only the statutory Appellate Forum, which could have decided the claims of the petitioners if an appeal was filed under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993.

20. Thus, in view of the findings recorded above, I hold that there is an alternative efficacious statutory remedy available to the petitioners under the Recovery of Debts and Bankruptcy Act, which is a self-contained code and there is no extraordinary ground to entertain this writ application under Article 226 of the Constitution of India. Thus, on this preliminary issue itself, I dismiss this writ application as not maintainable, as there is an alternative remedy of statutory appeal available to the petitioners. On this ground alone, without entering into the other issues raised, I dismiss this writ application.

Writ Application dismissed
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