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RVS Networks India Pvt. Ltd., rep. by its Managing Director, Venkata Swamy Ravuri & Others v/s Bank of Baroda, rep. by its Chief Manager


Company & Directors' Information:- BANK OF INDIA LIMITED [Active] CIN = U99999MH1906PLC000243

Company & Directors' Information:- U S N NETWORKS PRIVATE LIMITED [Active] CIN = U32201MH1998PTC306027

Company & Directors' Information:- U S N NETWORKS PRIVATE LIMITED [Active] CIN = U32201KA1998PTC024066

Company & Directors' Information:- P. K. R. NETWORKS PRIVATE LIMITED [Active] CIN = U72900UP2016PTC087676

Company & Directors' Information:- P C NETWORKS PRIVATE LIMITED [Active] CIN = U72200OR2000PTC006271

Company & Directors' Information:- P J NETWORKS PRIVATE LIMITED [Active] CIN = U72900DL2002PTC114227

Company & Directors' Information:- P J NETWORKS PRIVATE LIMITED [Active] CIN = U18100DL2002PTC114227

Company & Directors' Information:- NETWORKS PRIVATE LIMITED [Active] CIN = U29308UP1975PTC004211

Company & Directors' Information:- N BANK LTD [Strike Off] CIN = U65191WB1924PLC000442

Company & Directors' Information:- R.V.S. INDIA LIMITED [Strike Off] CIN = U01403DL1996PLC082412

Company & Directors' Information:- C I T NETWORKS PRIVATE LIMITED [Strike Off] CIN = U92132PN2001PTC015774

Company & Directors' Information:- P N N BANK LIMITED [Strike Off] CIN = U65921TZ1948PLC000153

Company & Directors' Information:- T AND T NETWORKS LIMITED [Strike Off] CIN = U72200GJ1995PLC024520

Company & Directors' Information:- CORPORATION BANK LIMITED [Strike Off] CIN = U99999KA1972PLC001067

Company & Directors' Information:- K AND C BANK LIMITED [Dissolved] CIN = U65191KL1928PLC000529

Company & Directors' Information:- THE BANK OF BARODA LIMITED [Not available for efiling] CIN = U99999MH1911PLC007676

Company & Directors' Information:- CORPORATION BANK LIMITED [Not available for efiling] CIN = U99999MH1936PTC002552

    W.P. No. 13154 of 2020

    Decided On, 13 August 2020

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE C. PRAVEEN KUMAR & THE HONOURABLE MRS. JUSTICE LALITHA KANNEGANTI

    For the Petitioners: B. Chandrasen Reddy, Advocate. For the Respondent: Srinivas Chitturu, Advocate.



Judgment Text

C. Praveen Kumar, J.1. The present Writ Petition came to be filed seeking issuance of writ of Mandamus declaring the Sale Notice issued by the Respondent-Bank under Rule 8(6) of Security, Interest (Enforcement) Rules, 2002, as illegal, arbitrary and violative of provisions of SARFAESI Act and the Rules made thereunder.2. The circumstances which lead to filing of the present Writ Petition are as under :The 2nd petitioner is the Managing Director of the 1st petitioner – company, who has filed this Writ Petition challenging the Notice issued under Rule 8(6) of Security, Interest (Enforcement) Rules, 2002. The 1st petitioner – company is carrying on business of transmission and distribution of various channels through satellite and cable in India and outside India. The 3rd and 4th petitioners are Directors of the 1st petitioner – company. It is said that the 1st petitioner availed cash credit facility and term loans to a tune of Rs.4.00 crores towards cash credit, and an amount of Rs.7.00 crores towards term loan-1 and further amount of Rs.1.00 crore towards terms loan-2. At the time of availing the loan, petitioners 2 to 4 stood as guarantors and by equitable mortgage of the immovable property. It is said that up to end of 2014 there was no default in payment of any amount, but, subsequently, the petitioner-company was irregular in payment due to bifurcation of the State of Andhra Pradesh. While things stood thus, a notice under Section 13(2) of SARFAESI Act, 2002 was received by the petitioner on 9.2.2017 from the respondent-bank, wherein it was informed that the loan account of the 1st petitioner has been classified as Non-Performing Asset and that the 1st petitioner was called upon to pay in full and discharge its liability to the bank, aggregating Rs.10,09,13,039.46 ps. plus interest. Further, notices also came to be issued to petitioners 2 to 4 under Section 13(2) of the SARFAESI Act informing them that, if the amount is not paid, bank shall be at liberty to exercise all or any of the rights under Section 13(4) of the Act. On 18.12.2017, a legal notice was also issued to the petitioners calling upon them to clear the amount.3. On 6.2.2018, the bank is said to have addressed a letter about One Time Settlement for clearing the outstanding dues. The 1st petitioner is said to have addressed a letter on 8.3.2018 accepting the offer made by the respondent-bank and that both parties have agreed for One Time Settlement at Rs.6,30,00,000/-. It is said that petitioners have paid Rs.63,00,000/- as upfront of the acceptance of OTS. As the petitioners failed to honour the commitments in terms of the condition, respondent-bank filed O.A.No.140 of 2018 for recovery of debt of Rs.11,18,60,038/-. Before filing the O.A., the respondent-bank has filed Criminal M.P.No.166 of 2017 before the Hon’ble Chief Judicial Magistrate-cum- Principal Senior Civil Judge, Chittoor, for issuance of warrant of commission, which was ordered on 12.4.2018. The order passed in criminal case under Section 14 of the SARFAESI Act was challenged before the Tribunal vide SA No.176 of 2018 and the same is pending consideration.4. Pending proceedings before the Tribunal, the present notice under Rule 8(6) came to be issued by the bank informing the petitioners that if the outstanding amount mentioned therein is not paid within 30 days of the notice, the properties will be sold in the manner prescribed therein. Challenging the same, the present Writ Petition came to be filed on the ground that in view of Section 28 of the Education Act, there is bar for sale of the property, more so, when the buildings raised therein are being used for educational purpose. The case of the petitioner is that nearly 6000 students are attending various courses in the academy established in the said place and that they will be put to irreparable loss and difficulty, if the property is sold. Apart from that, the learned counsel for the petitioners would contend that as the Sale Notice itself is not disclosing the true facts, namely, existing of the building in the said site, the same is illegal.5. The same is opposed by the learned counsel for the respondent stating that, first of all, Writ Petition itself is not maintainable, since the petitioner has a remedy of approaching the Debt Recovery Tribunal under Section 17 of the Act. He further pleaded that, since 2 O.As. and 1 S.A. are pending before the Tribunal, it will be just and proper for the petitioners to approach the said forum for effective adjudication of the matter.6. Coming to the merits of the case, the learned counsel for the respondent would submit that Section 28 of the Education Act may not apply to the case on hand, since it postulates that no sale, mortgage, lease, pledge, charge, or transfer of possession in respect of any property of a private institution other than a registered school shall be made or created except with the previous permission in writing of the competent authority on an application made in this behalf. In other words, his plea is that since property in dispute is not that of a private institution, but that of an individual, the bar under Section 28 of the Education Act will not apply. In so far as the defective notice is concerned, he would contend that as on today nothing is going on in the said premises and even as per the averment in the affidavit, the plea of the petitioner is that the premises is being used only for running a boys and girls hostel and canteen and that no educational institution is running in the said premises.7. Before proceeding further, it is to be noted that writ jurisdiction is an extraordinary jurisdiction of the High Court under Article 226 and 227 of the Constitution of India. It is settled legal position that a writ petition under Article 226 of the Constitution of India is normally not entertained where there is an efficacious alternative remedy.8. In Kanaiyalal Lalchand Sachdev & Ors v. State Of Maharashtra & Ors [2002] 2SCC 782), where the High Court has dismissed the Writ Petition filed by the Appellant under SARFAESI Act. The Hon’ble Supreme Court while dismissing the appeal held as under:-“21. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 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”.9. The Division Bench of this Court in Durgam Anitha, W/o. Late Durgam Darshanam & Another v. State Bank of Hyderabad, represented by its Authorised Officer, Mahboobgunj Branch, Hyderabad & Others delivered on 18.01.2012 in W.P. No. 17909 of 2011, while referring to the judgments of the Hon’ble Supreme Court in United Bank of India Vs. Satyawati Tondon & Ors (2010) 8SCC 110), and Raj Kumar Shivhare v Directorate of Enforcement (2010) 4 SCC 772)’ held that, “at the stage of demand notice under Section 13(2) of the SARFAESI Act, or possession notice under Section 13(4) of the SARFAESI Act, or at the stage of subsequent orders passed by the Bank, recovery of amount under the SARFAESI Act, no writ petition would lie, the proper remedy is by way of filing appeal under Section 17 of the SARFAESI Act and thereafter, if so aggrieved, by filing second appeal under Section 18 of the SARFAESI Act”.10. In GM, Sri Siddeshwara Co-operative Bank Ltd. and Ors. Vs. Ikbal and Ors (2013 (10) SCC 83)the Apex Court held as under:“27. There is one more aspect in the matter which has troubled us. Against the action of the Bank under Section 13(4) of the SARFAESI Act, the borrower had a remedy of appeal to the Debts Recovery Tribunal (DRT) under Section 17. The remedy provided under Section 17 is an efficacious remedy. The borrower did not avail that remedy and further remedies from that order and instead directly approached the High Court in extraordinary jurisdiction under Article 226 of the Constitution of India.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed 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 a detailed mechanism for redressal of his grievance.”31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article32. ……. In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him Under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.”11. In Authorized Officer, State Bank of Travancore vs. Mathew K.C. (AIR2018SC676)the Hon’ble Supreme Court held as under:-“Even prior to the SARFAESI Act, considering the alternate remedy available under the DRT Act it was held in Punjab National Bank vs. O.C. Krishnan and others (2001) 6 SCC 569), that:-The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act.”In Satyawati Tandon (supra), the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding:-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.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.The Section 13(4) notice along with possession notice under Rule 8 was issued on 21.04.2015. The remedy under Section 17 of the SARFAESI Act was now available to the Respondent if aggrieved. These developments were not brought on record or placed before the Court when the impugned interim order came to be passed on 24.04.2015. The writ petition was clearly not instituted bonafide, but patently to stall further action for recovery. There is no pleading why the remedy available under Section 17 of the Act before the Debt Recovery Tribunal was not efficacious and the compelling reasons for by-passing the same. Unfortunately, the High Court also did not dwell upon the same or record any special reasons for grant of interim relief by direction to deposit.”The impugned orders are therefore contrary to the law laid down by this Court under Article 141 of the Constitution and unsustainable. They are therefore set aside and the appeal is allowed”.12. From the judgments referred to above, it is clear that even in respect of a Notice under Rule 8(6) of Security Interest (Enforcement) Rules, 2002, issued under SARFAESI Act, 2002, a remedy under Section 17 of the SARFAESI Act is available to petitioners. However, the present Writ Petition came to be filed on the ground that there is statutory bar under Section 28 of the Education Act for sale of the property.13. Section 28 of the Education Act reads as under:“28. Restriction on alienation of property of private institution:-(1) Notwithstanding anything in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of a [private institution other than a registered school] shall be made or created except with the previous permission in writing of the competent authority on an application made in this behalf.(2)(a) No permission applied for under sub-section (1) shall be refused by the competent authority except where the grant of such permission will in its opinion, adversely affect the working of the institution.(b) The competent authority shall pass an order, either granting or refusing permission applied for, within a period of sixty days from the date of receipt of the application.(3) Any person aggrieved by an order refusing permission under sub-section (2) may, in such manner and within such time as maybe prescribed, appeal to the prescribed authority.(4) Any transaction made in contravention of sub-section (1) shall be null and void.”14. From a reading of the provisions of the Act it prima facie appears that notwithstanding anything contained in any other law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of a private institution shall be made or created, except with the permission in writing of competent authority. But, in the instant case, there is already a mortgage and lease agreement, further the property in dispute is in the name of one, Sri Ravuri Venkatesam and not in the name of any private institution.15. In so far as the plea relating to the defective notification is concerned, learned counsel for the petitioners urged that the said notification does not indicate existence of buildings over the said land. Hence, according to him, the entire notification

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has to be quashed.16. The same is strongly refuted by the counsel appearing for the Bank stating that the issue as to whether the said notification is a defective one, can be raised before the Debt Recovery Tribunal-II, Hyderabad, which will be the appropriate authority to look into the matter by taking into consideration the pleas raised in O.A.Nos.140 and 141 of 2018 filed by the bank against borrowers and Directors and S.A. No.176 of 2018 filed by the petitioners questioning 13(4) Notice before it.17. Having regard to the above, it will be just and proper to permit the petitioners to raise the said plea before the Tribunal, which will examine the issue by taking into consideration the pleas raised in the three other cases which are pending adjudication before the Tribunal between the same parties, as referred earlier. Further, it is brought to our notice that symbolic possession of the property was also taken by the bank.18. Having regard to the law laid down by the Supreme Court with regard to the invocation of the jurisdiction of this Court under Article 226 of the Constitution of India when an alternative efficacious remedy is available and when the cases filed by the bank and also by the writ petitioners are pending consideration before the very same forum, it would be just and proper for the petitioners to approach the Debt Recovery Tribunal-II, Hyderabad, where cases filed by both parties are pending adjudication.19. Giving liberty to the petitioners to approach the said forum, the Writ Petition is disposed of. It is made clear that any observations made in the order are only for the purpose of deciding the instant case and the same shall not influence the Tribunal while deciding the application if any filed by petitioners. No order as to costs.Consequently, miscellaneous petitions pending, if any, shall stand closed.
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