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2016 (4) TMI 964 - HC - Indian LawsMaintainability of writ petition against an order passed by the Debts Recovery Tribunal disposing of an appeal filed under S.17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Held that:- When extraordinary writ remedy is invoked, despite the availability of an alternative remedy, the Court should at the threshold, examine, whether the petition can be entertained having regard to the pleading in the petition, more particularly, the reason(s) stated for bypassing of the alternative remedy. In a catena of decisions, it has been held by the Apex Court, that writ petition under Article 226 of the Constitution should not be entertained when the alternate remedy is available under the Act, unless exceptional circumstances are made out. The writ remedy cannot be permitted to be availed as a routine / matter of course, but only in exceptional circumstances. The Apex Court has recognized some exceptions to the rule of alternative remedy i.e., where the statutory body has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of principles of natural justice, or when the vires of the statute is under challenge. Unless the Court is convinced that the case falls under the exceptional categories, the writ petition filed against the order of the Tribunal, passed in exercise of the jurisdiction under S.17 of the SARFAESI Act, on account of the legislative intent behind the enactment of the SARFAESI Act and RDDB Act and the ratio of law laid down by the Apex Court in the cases of (1) Kanaiyalal Lalchand Sachdev [2011 (2) TMI 1277 - SUPREME COURT OF INDIA ] (2) Satyawati Tondon [2010 (7) TMI 829 - SUPREME COURT ] and (3) Sri Siddeshwara Co.Op. Bank Ltd. [ 2013 (9) TMI 216 - SUPREME COURT ], cannot be entertained, as the approach of the High Court should be consistent with the provisions of the statutes and also the law laid down by the Apex Court, mandated by Article 141 of the Constitution. In view of the aforesaid discussion, we are of the opinion that Hotel Vandana Palace case [2011 (11) TMI 723 - KARNATAKA HIGH COURT] does not lay down the correct position of law i.e., in so far as point No.(ii) answered therein. Hence, the finding recorded on point No.(ii), in Hotel Vandana Palace case, is declared as per incuriam. Needless to say that any decision(s) of this Court which take(s) the view contrary to the law laid down by the Apex Court, in (1) Kanaiyalal Lalchand Sachdev (2) Satyawati Tondon and (3) Sri Siddeshwara Co.Op. Bank Ltd., does not lay down the correct law on the question involved in this Reference. The Reference is answered accordingly. The petition be now listed before the learned Single Judge, to decide in the first instance, the entertainability or otherwise of the writ petition by keeping in view the position of law, as above.
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