Bhagwati Prasad Agarwal vs Allahabad Bank

This writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the sale notice dated 11.03.2013 as contained under

annexure-9 to the writ petition has been sought to the quashed.

The brief facts of the case of the petitioner as per the pleading made in the writ petition is that in pursuance to the auction notice dated 24.08.2008

published by Allahabad Bank, Zonal Office in the local daily newspaper for sale of M.S. Plot No.1773, 1774, 1811 and 1775, Municipal Holding

No.1437 and 1438, New Municipal Holding No.1336, P.S.-Kotwali at Village-Chadri, Line Tank Road, Ranchi measuring an area of 1450 Sq. Ft., in

which the petitioner has found to be successful and by quoting Rs.21,55,687.55/- along with the earnest money of 10 per cent of the reserve price.

Accordingly, the petitioner has deposited 25 per cent of the bid amount amounting to Rs.5,41,000/- on 27.09.2008.

According to the petitioner, he has made correspondence to respondent-Bank to apprise him the date for depositing the rest of the amount but no

such response has been furnished by the respondent-Bank and in the meanwhile, the petitioner has been treated to be defaulter in making payment of

rest of the amount, in consequence thereto, fresh notice has been issued for auction sale on 11.03.2013, therefore, the petitioner has filed the suit being

Title Suit No.192 of 2013 as also the present writ petition for restraining the respondent-Bank to proceed further in pursuance to the sale notice dated

11.03.2013 on the ground of pendency of the Title Suit No.192 of 2013.

Counter affidavit has been filed by the Respondent-Bank.

Mr. Raj Rajat Nath, learned counsel appearing for the Respondent-Bank, has submitted by placing the counter affidavit filed on his behalf, inter-alia

therein, it has been stated that since the petitioner has already filed Title Suit No.192 of 2013 restraining the defendants, respondent-Bank herein from

re-selling the suit property and as such, the present writ petition, is not maintainable.

On merit, it has been stated therein that the petitioner has not adhered to the terms and conditions of the sale auction by not depositing the rest of

the amount which was challenged before the Debt Recovery Tribunal, Ranchi in SARFAESI Application No.16 of 2008 and the said SARFAESI

Application was dismissed on 07.01.2009, which led the respondent-Bank to sale out the property in order to liquidate the same to recover the amount

which has been sanctioned to the original borrower.

It has been contended by Mr. Nath, learned counsel appearing for the respondent-Bank that the Bank is not at fault rather the petitioner even

though has been declared to be successful auction purchaser but instead of depositing the amount in entirety, only 25 per cent of the amount has been

deposited, therefore, the sale could not have been proceeded, in consequence thereof, the respondent-Bank in order to liquidate collateral mortgage

property for securing the loan amount, has proceeded by virtue of fresh auction notice dated 11.03.2013, therefore, there is no illegality having been

committed on the part of the respondent-Bank.

He, with full emphasis, has submitted that since the petitioner before approaching to this Court has filed suit being Title Suit No.192 of 2013 instead

of taking ad-interim injunction therein by filing an application under Order 39 Rule 2 of the CPC, the present writ petition has been filed, therefore, the

writ petition may not be entertained.

This Court after having heard the learned counsel for the parties and on appreciation of their rival submissions has found some admitted fact herein

that the respondent-Bank in order to get the amount sanctioned to the original borrower by liquidating the mortgage property which has been secured,

has come out with the auction notice for sale of it after the order having been passed by the Debt Recovery Tribunal under the provision of

SARFAESI Act, 2002 being S.A. No.16 of 2008 which was dismissed on 07.01.2009.

Admittedly, the petitioner has been declared to be successful auction purchaser and he has also deposited 25 per cent of the total auction amount

but rest of the amount has not been deposited by him.

As would be evident from the pleading made in the writ petition that the respondent-Bank has come out with fresh auction notice on 11.03.2013

which is the subject matter of the present writ petition, the petitioner has questioned the same by filing the title suit being Title Suit No.192 of 2013.

The petitioner has simultaneously approached to this Court by way of present writ petition restraining the respondent-Bank not to proceed with the re-

sale notice, as on account of pendency of the title suit being Title Suit No.192 of 2013.

The question herein, is that as has been agitated by the respondent-bank in the counter affidavit where after filing of the title suit being Title Suit

No.192 of 2013, the present writ petition can be held to be maintainable for granting relief by way of ad-interim nature, in restraining the respondent-

Bank for proceeding with the re-sale in pursuance to the notice dated 11.03.2013.

The position of Law is very clear i.e., the “Theory of Election†which means that if the remedies are available and the litigant by resorting to

one remedy has already approached to a Forum, he will be precluded to resort to other remedy available.

It is the admitted case that the petitioner’s prayer is to restrain the respondent-Bank in re-selling the mortgage property during pendency of

the suit being Title Suit No.192 of 2013 as would be evident from para-1 and prayer portion of the writ petition.

The petitioner since has already approached before the competent court of civil jurisdiction by filing a suit being Title Suit No.192 of 2013 wherein

remedy is already available to the petitioner for getting ad-interim injunction by filing a petition under Order 39 Rule 1 and 2 of the CPC but instead of

doing so, the present writ petition has been filed.

Therefore, considering the principle of “Theory of Electionâ€​, this Court is of the view that this writ petition is not fit to be entertained.

In view thereof, this writ petition is dismissed.

However, if the Title Suit No.192 of 2013 is still pending, it is open for the petitioner to pursue the same.