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2022 (7) TMI 1505 - HC - Indian LawsMaintainability of petition - non-availment of the alternative remedy under Section 17 of the SARFAESI Act, 2002 - HELD THAT:- Reliance placed on the decision of the Supreme Court in the case of Aggarwal Tracom Pvt.Ltd. vs. Punjab National Bank Order [2017 (11) TMI 1523 - SUPREME COURT] to contend that the Writ Petitions under Article 226 of the Constitution of India cannot be entertained when effective statutory remedy is available to the aggrieved person, in a later judgment rendered in the case of Authorized Officer, State Bank of Travancore and Another Vs. Mathew K.C [2018 (2) TMI 25 - SUPREME COURT] , the Supreme Court held that there are well defined exceptions to the rule of exhaustion of alternative remedy as laid down in decision of Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal [2013 (8) TMI 458 - SUPREME COURT] and one of such exceptions mentioned in Para 15 of the said judgment is “where the statutory authority has not acted in accordance with the provisions of the enactment in question.” - the plea of the respondent is rejected that the Writ Petition ought to be dismissed in view of existence of alternative remedy under Sec.17 of the Act. Whether the petitioner is entitled to any relief? - HELD THAT:- As per Or.XXXVIII Rule 11 CPC, where property is under attachment by virtue of the provisions of the said Order XXXVIII CPC and a decree is subsequently passed in favor of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for reattachment of the property. So the attachment before judgment granted shall be effective and operative even after passing of the decree and while executing the decree it is not necessary to re-attach the property - So if the petitioner had to get clear title from the Bank pursuant to the tender /public notice dt.24.4.2019 (P4), he would have to satisfy the said decree in the above suit as well. Had the petitioner been aware of this, he might not have participated in the tender issued by the Bank at all. No intending purchaser wants to buy fresh litigation or take on other unknown liabilities against third parties, and it was the statutory duty of the Bank to disclose them in the public notice/tender notice. So the action of the respondent Bank is arbitrary and contrary to the provisions of the Act - It is strange that these documents are disclosed along with reply affidavit had not been taken into account for disclosing in the tender/public notice dt.24.4.2019 (P4) (under Rule 8(6) (f)) the existence of civil court decree which undoubtedly would have a bearing on the willingness of the bidder to participate in a Public Auction/Tender notification and would also have impact on the price being offered. The Bank has failed to act in a transparent manner, and had acted inequitably and arbitrarily - the respondent-Bank is directed to refund to the petitioner a sum of 1.80 Crores deposited by the petitioner with interest @ 7% per annum from the respective dates of deposit of such amount within 4 weeks from today - the Writ Petition is partly allowed.
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