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Judgment
D. Murugesan, J.—As the issues involved in the Writ Appeal and the Writ Petitions are one and the same, they are taken up together for
disposal by this Common Order.
For the disposal of both the Writ Appeal and the Writ Petitions, the following few facts are stated.
The State Bank of Hyderabad (hereinafter referred to ""The Bank"") filed O.A. No. 1967/1998 on the file of Debt Recovery Tribunal I, Chennai for
recovery of a sum of Rs. 41,29,517.80 with interest and costs against defendants viz., (1) Srinivasa Leathers, a partnership firm, 2) Managing
Partner S.P. Thangaraj, 3) R. Venkataraman, a partner and 4) S.P. Savithri guarantor for the loan by depositing title deeds in respect of D
schedule(hereinafter referred to "" The Petitioner""). The claim against the petitioner was laid on the ground that she had mortgaged her house
property detailed in Schedule D in O.A. as a guarantor for the loan. All the defendants in the suit including the Petitioner appeared before the Debt
Recovery Tribunal and also filed their reply statements. It was the contention of the Petitioner before the DRT that as the guarantee was only upto
30.7.1996, she was not liable for any amount to the bank after 31.7.1996 and her deposit of title deeds cannot extend beyond 31.7.1997.
By order dated 27.9.2002, the DRT allowed the application with a further direction for sale of mortgaged property. It must be mentioned at this
stage that the 2nd defendant in O.A. by name S.P. Thangaraj, Managing Partner filed W.P. No. 20353/1998 and the same was dismissed on
3.10.2002. Consequently, a Recovery Certificate dated 23.06.2003 for a sum of Rs.59 lakhs and odd with future interest and costs was also
issued. On receipt of the said Recovery Certificate, the Petitioner by letter dated 15.9.2003, offered the bank to pay a sum of Rs.15 lakhs out of
which Rs.5 lakhs will be paid immediately and the remaining amount of Rs.10 lakhs will be paid in a year. As the bank did not agree for the said
offer, an order of attachment was made on 9.12.2003 by the Recovery Officer. The Petitioner filed M.A. No. 20/2004 before the DRT for
recalling the recovery orders and the attachment warrant. She also filed M.A. No. 21/2004 for stay of sale. However, by order dated 9.2.2004
the DRT directed that the sale shall go on but the same shall be subject to the orders that may be passed in the above applications.
In the mean time, the Petitioner along with her son who was shown as Defendant No. 2 in the OA, appears to have filed an appeal before the
Debt Recovery Appellate Tribunal on 17.12.2002 questioning the order of DRT dated 27.09.2002, but did not pursue the same thereafter.
Without pursuing the appeal, it appears that the Petitioner pursued only the applications seeking for stay of attachment and sale. When those
applications were again heard, by order dated 12.2.2004, the Recovery Officer passed an order giving the Petitioner and her son two months time
to settle with the Bank with a further direction that they should deposit Rs.12 lakhs within four weeks from the said date failing which the auction
would be held on 11.03.2004. On the ground that the said order was made without notice and the Recovery Officer has no jurisdiction to extend
the time after orders are passed by DRT, the Bank filed appeal No. 1/2004. As the conditional order was not complied with by the Petitioner, by
depositing Rs.12 lakhs within a period of four weeks, the Bank was permitted to advertise the sale of the property. The Petitioner questioned the
order of the DRT dated 23.06.2003 and the order of attachment dated 9.12.2003 by filing W.P. No. 6021/2004. A learned Judge of this Court
set aside the order of attachment on the ground that the applications filed by the Petitioner against the order of recovery and attachment warrant
were pending. The bank has questioned the said order in Writ Appeal No. 1307/2004.
Pursuant to the order of the Recovery Officer dated 11.03.2004, permitting the bank to advertise the sale, the Petitioner filed W.P. No.
22418/2004. By order dated 4.8.2004, this Court had directed the sale shall go on but the confirmation of sale shall not be done till the Debt
Recovery Tribunal passes the orders in M.A. Nos. 20 and 21/2004 and appeal No. 1/2004.
On 27.9.2004, the DRT dismissed both M.A.Nos.20 and 21/2004 as well as Appeal No. 1/2004. The Petitioner has questioned the orders of
DRT made in the above applications in W.P. No. 29411/2004. In the mean time, the Petitioner re-presented the appeal papers before the Debt
Recovery Appellate Tribunal with a petition for condonation of delay. By order dated 19.04.2004, the Tribunal after excusing the delay in
representation of appeal, directed the Registrar to register the same as Unregistered Appeal (URA) No. 12/2004 and further directed the matter
to be called on 12.5.2004 with regard to the request of the Writ Petitioner for waiving the deposit of 75% of the Recovery Certificate amount. On
12.5.2004, the Tribunal directed the Petitioner and other defendants therein to deposit Rs.20 lakhs within six weeks from the date of the order. It
was also directed, in the event failure to deposit the said amount within the said time, the said appeal shall stand rejected. As the deposit amount
was not made, the appeal was dismissed on 23.6.2004. After the dismissal of the URA 12/2004, the Petitioner has filed W.P. No. 31232/2004
questioning the order of the Tribunal dated 12.5.2004 in directing the deposit of Rs.20 lakhs within a period of six weeks.
We have heard Mr. N.S. Nandakumar, learned counsel appearing for the Petitioner and Mr. J. Radhakrishnan, learned counsel appearing for
the Bank.
We do not find any merit in the grievance of the Petitioner in all these Writ Petitions. The facts we have narrated above would go to show that
the Petitioner is only indulging in abuse of process of this Court without any valid reason. As against the order of the Debt Recovery Tribunal in
allowing the Original Applications filed by the Bank and issued the Recovery Certificate on 23.6.2003, the Petitioner has got statutory remedy of
appeal u/s 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Though the appeal is said to have been filed and the
same was returned for certain compliance, the Petitioner did not re-present the same in time but allowed the Recovery Officer to order attachment.
Again, without questioning the Recovery Certificate ordered by DRT by pursuing the appeal, the Petitioner has filed only applications in M.A.
Nos. 20 and 21/2004 for recalling the consequential orders of recovery and attachment warrant. It must be pointed out that even those
applications were dismissed on 29.1.2004 by DRT and the petitioner has not questioned the said order by filing appeals before DRAT. The
Petitioner appears to have only re-presented the appeal filed against the order in O.A. before the Tribunal with a petition for condonation of delay.
After condoning the delay, by further order dated 12.5.2004, the Tribunal directed the Petitioner and other defendants to deposit Rs. 20 lakhs on
or before 23.6.2004. Without either questioning the conditional order or complying with the condition, the petitioner allowed the appeal itself stood
rejected.
It is the contention of Mr. N.S. Nandakumar, learned counsel appearing for the Writ Petitioner that as the guarantee furnished by the Writ
Petitioner was valid upto 30.7.1996, the respondent cannot proceed against the Petitioner. We are not inclined to accept the said submission in
view of the fact that the Petitioner neither canvassed the said point nor get the same adjudicated either before the Debt Recovery Tribunal or
before the Debt Recovery Appellate Tribunal. The discretionary jurisdiction under Article 226 of the Constitution of India cannot be extended to
persons who are not diligent in canvassing their grievance at the appropriate time before the appropriate forum/authorities. The proper course
ought to have been adopted by the Petitioner was to have filed an appeal before the DRAT questioning the order of DRT and got the issue
adjudicated on merits then and there. Without pursuing the appeal, the Petitioner had proceeded to question the recovery orders and the
consequential order of attachment made by the Recovery Officer before the DRT itself. It must be borne in mind that though the Recovery Officer
had also given indulgence to the Petitioner by granting two months time to settle the issue with the bank and that too on the request of the Petitioner
that she is trying to settle with the Bank, instead of complying with such direction, the petitioner had resorted only to indulge in filing Writ Petitions
to avoid the payment. Admittedly, the Petitioner did not comply with the said condition and allowed the Recovery Officer to pass recovery orders
and attachment. Even when the Appellate Tribunal had given indulgence in condoning the delay and by directing the Petitioner and other
defendants to deposit a sum of Rs.20 lakhs on or before 23.6.2004, the Petitioner did not comply with the same and allowed the appeal to be
rejected on the ground of non-compliance of the conditions. It must be pointed out that the Tribunal did not decide the issue on merits but rejected
the appeal on the sole ground that the Petitioner has not complied with the condition.
In view of the judgment of the Supreme Court reported in Union of India and Another Vs. Delhi High Court Bar Association and Others, , the
Petitioner has got an alternative remedy of appeal before the appellate Tribunal and such order of the appellate Tribunal is alone subject to judicial
review under Article 226 of the Constitution of India. In our considered opinion, exhausting alternative remedy does not mean a mere filing of an
appeal but inviting an order on merit after adjudication. In the absence of such adjudication on merits, it cannot be contended that the petitioner has
exhausted the remedy of statutory appeal. Further, as there was no adjudication on merits, the petitioner cannot be allowed to either raise or argue
on merits before this Court.
For the above reasons, Writ Appeal No. 1307/2004 is allowed and the Writ Petition No. 6021/2004 is dismissed. W.P. No. 31232/2004 is
dismissed and consequently, W.P. Nos. 22418 and 29411/2004 are also dismissed. No costs. Consequently, W.A.M.P. No. 2443/2004,
W.P.M.P. Nos. 27139, 35726 and 37849/2004 are closed.