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Judgment
V.V.S. Rao, J.—The petitioners are allegedly owners of land admeasuring Ac.1.00 in S. No. 150 situated at Doolapally village of Qutbullapur Mandal in Ranga Reddy District District, by virtue of Occupancy Rights Certificate (ORC) dated 06.4.1998 issued to them under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. They statedly purchased another extent of Acs.0.20 guntas in the same survey number under registered sale deed dated 30.12.2002 from Smt. M. Suwarna Kumari, who also had ORC in her favour. There was civil litigation between the petitioners and the third respondent as manifested in two suits being O.S. No. 108 of 2009 filed by the petitioners and O.S. No. 807 of 2009 filed by the third respondent. In this writ petition, mention of the details of those suits is not necessary.
The first respondent provided loan and credit facilities to M/s. Aishwarya Art Creations Private Limited and the second respondent given security by mortgaging the property. When there was a default by the borrower, the first respondent invoked Section 13(2) of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and sent demand notice dated 16.4.2011. Among others the property mortgaged by the second respondent being 6,655 Sq. yards in S. No. 150 (part) of Doolapally village and a plot of 300 Sq. yards in S.Nos.55 and 59 of Madhapur Village are shown as having been mortgaged to the first respondent, in the said notice. The petitioners filed the instant writ petition assailing the said notice. They mainly contend that rightful ownership vests in them and the respondents 2 and 3 have no right, title or interest in the said property. They would also contend that by reason of Section 31(i) of the SARFAESI Act agricultural land is exempted from being attached and sold for realisation of bank loan.
This Court ordered notice before admission on 28.6.2011. Subsequently by an order dated 08.8.2011 this Court stayed all further proceedings pursuant to the impugned demand notice u/s 13(2) of the SARFAESI Act. The first respondent moved W.V.M.P. No. 3815 of 2011 seeking vacation of the interim order. The matter is, however, taken up for hearing with the consent of the Counsel for both the parties.
In the counter affidavit, the first respondent asserts that it is security interest over the property of the second respondent which was mortgaged by depositing title deeds to secure the loan (CC limit) availed by M/s. Aishwarya Art Creations. The second respondent purchased the said land under registered sale deed dated 25.6.2009 from M/s. Krishna, Balraj, Ravi and Murali, all are sons of Gyara Pochaiah, the original pattadar; the mortgage created by the second respondent is therefore valid; the allegation that they secured asset in the agricultural land is false; and no agricultural activities are undertaken on the property.
This Court heard the Counsel for the petitioners and the Counsel for the State Bank of Hyderabad. The writ petition is opposed inter alia on the ground that in view of the alternative remedy available u/s 17 of the SARFAESI Act, writ petition would not lie. Reliance is placed by the Bank on the decision of the Supreme Court in United Bank of India Vs. Satyawati Tondon and Others,
There cannot be any dispute that judicial review is barred when there is an effective and efficacious alternative remedy. This is judicially evolved principle of caution. But the Court can, within its discretion, ignore alternative remedy and entertain a writ petition in certain select situations ( Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, Nevertheless, when there are serious disputed questions of fact or contentious issues in relation to the title to the property, judicial review is certainly barred and writ petition would not lie ( State of Rajasthan Vs. Bhawani Singh and others, , Smt. Parvatibai Subhanrao Nalawade Vs. Anwarali Hasanali Makani and others etc., , Mohan Pandey and Another Vs. Smt. Usha Rani Rajgaria and Others, and Dwarka Prasad Agarwal (D) by LRs. and Another Vs. B.D. Agarwal and Others, . Even where a statute ousts common law jurisdiction and creates Special Tribunal empowering with all the powers to adjudicate the disputes thereunder, ordinarily writ Court would not entertain such writ petition. From the pleadings as narrated hereinabove, the petitioners claim title by reason of ORC granted under registered sale deed and their vendor also claims title under ORC. The Bank places reliance on the revenue records like pahanis as well as registered documents in support of the plea of marketability of title held by the second respondent who mortgaged the property to secure the loan. Therefore, the title with regard to the secured asset itself is in dispute. The Counsel for the Bank is, therefore, correct that writ petition would not lie.
In Satyawati Tondon, the United Bank of India sanctioned loans to M/s. Pawan Colour Lab and the respondent herein gave a guarantee for repayment of the loan. She mortgaged her house property and executed an affidavit to that effect. The loan was classified as Non Performing Asset (NPA) and demand notices were sent to the principal borrower and guarantor u/s 13(2) of the SARFAESI Act. The Bank then filed application u/s 14 of the SARFAESI Act rejecting the offer of the borrower to pay part payment and thereafter issued possession notice u/s 13(4) of the SARFAESI'' Act, assailing which the first respondent filed writ petition before the High Court and obtained a restraint order. This was challenged before the Supreme Court. The appeal was allowed by the Supreme Court on the ground that when there is an effective alternative remedy provided by a special enactment, the High Court, ignoring the same, cannot exercise jurisdiction under Article 226 of the Constitution and pass order which has adverse impact on the right of the Bank. The Supreme Court referred various decisions. It would be beneficial to excerpt those paragraphs, which specifically deal with the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, as follows.
In Punjab National Bank Vs. O.C. Krishnan and Others, , this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal u/s 19 of the DRT Act and observed: (SCC p.570, paras 5-6)
In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable u/s 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short ''the Act''). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.
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 u/s 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 C.C.T. Orissa and Others Vs. Indian Explosives Ltd., , the Court reversed an order passed by the Division Bench of the Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy.
In City and Industrial Development Corporation Vs. Dosu Aardeshir Bhiwandiwala and Others, the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under: (SCC pp. 175-76)
In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.
The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the 128 State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law.
In Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, , the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed: (SCC p. 781, paras 31-32)
When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
No reason could be assigned by the appellant''s counsel to demonstrate why the appellate jurisdiction of the High Court u/s 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum.
In Modern Industries Vs. Steel Authority of India Ltd. and Others, the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a petition under Article 226 of the Constitution.
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.
In view of the settled legal position that at the stage of demand notice u/s 13(2) of the SARFAESI Act, or possession notice u/s 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 u/s 17 of the SARFAESI Act and thereafter, if so aggrieved, by filing second appeal u/s 18 of the SARFAESI Act.
The writ petition, for the above reasons, is misconceived and is, accordingly, dismissed.