TMI Blog2014 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of the auction purchaser. I am of the view that the application for impleadment of auction purchaser could have also been allowed. The several irregularities in auction which has been pointed out before this Court require adjudication by the tribunal itself. Order dated 29.11.2010 passed on the application for review is quashed and Review application is allowed and the order dated 03.01.2008 passed in S.A. No. 98 of 2007 is reviewed with the direction that the petitioner's application for impleadment and amendment shall stand allowed to make necessary amendment in S.A. No. 98 of 2007 and thereafter it shall be heard and decided a fresh by the Debt Recovery Tribunal, Lucknow after providing opportunity of hearing to the parties concerned - Since the property auctioned is a dwelling house of the petitioner and the stay order passed by this Court is operating till date, I hereby provide that meanwhile the petitioner shall not be dispossessed from the house in question - Decided in favour of petitioner. - Writ Petition No.7605 of 2010 (MS), Writ Petition No. 168 (MS) of 2011 - - - Dated:- 2-1-2014 - Shri Narayan Shukla,J. For the Petitioner Sri Amrendra Nath Tripathi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 8 (1) and 8 (2) of the Rules as neither any possession notice was delivered to borrower nor was it published in the newspapers as is required under Rule 8. The petitioner further complains that no notice under Rule 8 (6) of the Rules was ever served upon the petitioner nor was secured debt intimated to him whereas the auction notice was published in the newspaper dated 17.8.2007 to auction the property on 20.9.2007. For the purpose of auction tenders were invited with the condition that tenders should be accompanied by demand draft of 10 % i.e. 3,56,400/- out of the reserve price ,i.e, Rs.35,64,000/-. It was also provided that successful bidder has to deposit 25 % of the bid amount immediately after allotment of bid and 75 % within fifteen days thereafter, failing which the amount deposited was liable to be forfeited. The petitioner challenged the said notice dated 15.5.2007 issued under Section 13(4) of the Act before this Court through W.P.No. 6956 ( M.B.)of 2007. The respondent- Bank raised preliminary objection against the maintainability of the writ petition on the ground that the petitioner has alternative remedy to prefer an appeal under Section 17 of the Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue draft no. etc. of the bid amount. (2)The mode of payment of 75 % of the bid amount. (3)The date of realization of the above said amount in the accounts of the Bank. (4)The copy of sale deed executed by the Bank in favour of auction purchaser. The respondent - Bank furnished the information as asked above as under; Item No.1 :The mode of payment of 25 % was partially by cash and by DD Cash pad Rs. 1240195 dated 22.9.2007 DD No.111241 dated 25.9.2007 Amount Rs.360000/- Item No. 2: The mode of payment of 76 % was partially by cash and by cheque Cash paid Rs.850585/- dated 8.10.2007 Cheque No.111672 dated 11.10.2007 Amount Rs.3950000. Item No. 3 The amounts deposited were realized on the dates on which it were received. Item No. 4. The information which relates to personal information the disclosure of which has no relationship to any public activity or interest is exempted from disclosure under Section 8(1) (1) of the Act 2005. Learned counsel for the petitioner submits that the aforesaid information as supplied by the respondent- Bank reveals that auction held on 20.9.2007. 25% of the bid amount was paid partially by cash amounting to Rs.1240195/- on 22.9.2007 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner also complains violation of Rules 9 (3)(4) (5) of the Rules. He further submits that the deposition of the 25 % of the bid amount immediately after holding auction by the highest bidder is mandatory but it was not so made as auction was held on 20.9.2007 whereas the total 25 % amount of the bid was deposited on 25.9.2007. Thus on the basis of the aforesaid illegalities, the learned counsel for the petitioner submits that the order impugned deserves to be quashed and the auction in question be also declared as nullity. Per contra learned counsel for the opposite party no. 4 (auction purchaser) raised objection against the maintainability of the writ petition on the ground that the order impugned passed by the Debt Recovery Tribunal, Lucknow in Review Petition No. 1 of 2008 is appeal able before the Debt Recovery Appellate Tribunal, therefore, on the ground of availability of the alternative remedy to the petitioner, the instant writ petition is not maintainable. In support of his submission he also cited a decision of Hon'ble Supreme Court I.e, United Bank of India Vs. Satyawati Tondon and others ( 2010) 8 Supreme Court Cases 110. Relevant paragraphs 43,44,45,52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 168, 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. Paragraphs 29 and 30 of that judgment which contain the views of this Court read as under:- "29. 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. 30.The Court while exercising its jurisdiction under Article 226 is duty-bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the appellate jurisdiction of the High Court under Section 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" 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Court s continue to ignore the availability of statutory remedies under the DRT Act and 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. Learned Counsel for the Bank, also raised the same objection and added one more judgment on the point of objection i.e. Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra 2011 (2) SCC 782, relevant paragraph 23 is extracted below :- 23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under section 17 of the Act. It is well settled that ordinarily relief u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s application S.A. No. 98 of 2007 was dismissed. Therefore, the writ petition deserves to be dismissed on the ground of alternative remedy. In reply of objection raised against the maintainability of the writ petition, the learned counsel for the petitioner submits that the objection on the maintainability of the writ petition as raised by the respondent has already been considered by this Court at the stage of admission of the writ petition and the same has been rejected by means of order dated 07.03.2011. This Court has also been pleased to admit the writ petition and pass interim order. The order passed by this Court has been affirmed by the Hon'ble Supreme Court. However the Supreme Court observed for the High Court to expedite the disposal of the appeal i.e. the case on hand. On the aforesaid back drop he submits that the issue once decided is not open for readjudication and in support of his submission he has also cited some decisions of the Hon'ble Supreme Court 1998(4) SCC 361 Ashok Kumar Srivastava Vs. National Insurance Company. Relevant paragraph No.11 is quoted herein below:- "11. It is well neigh settled that a decision on an issue raised in writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was acceptable to it. Further, the issue which is now sought to be re-agitated stands concluded by the earlier order of remand passed by this Court. The respondent cannot now, in the second round of appeal to this Court, be permitted to urge such pleas as it could have urged in the earlier round or which it urged and was not accepted by this Court." 2003 (3) SCC 393, P. Lal Vs. Union of India and others, relevant paragraph No.20 is quoted herein below:- "20. We are unable to accept the submissions of Mr. Jethmalani. As has been pointed out hereinabove, against the portion of the impugned judgment which held that the Appellant had locus and that the Central Administrative Tribunal had jurisdiction, Respondent No. 3 had filed a Special Leave Petition. That has been dismissed by this Court on 10th December, 2000. It is therefore not open to Respondent No. 3 to again raise these contentions. These findings in the impugned judgment have become final as against Respondent No. 3. Even otherwise, we see no substance in these submissions." Therefore, the learned counsel for the petitioner submitted that the stage of objection on the maintainability of the writ petition ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auction are the relevant and necessary facts which could have been taken on record and since, if the auction is set-aside the same shall prejudice the right of the auction purchaser. I am of the view that the application for impleadment of auction purchaser could have also been allowed. The several irregularities in auction which has been pointed out before this Court require adjudication by the tribunal itself. Therefore, the order dated 29.11.2010 passed on the application for review is quashed and Review application is allowed and the order dated 03.01.2008 passed in S.A. No. 98 of 2007 is reviewed with the direction that the petitioner's application for impleadment and amendment shall stand allowed to make necessary amendment in S.A. No. 98 of 2007 and thereafter it shall be heard and decided a fresh by the Debt Recovery Tribunal, Lucknow after providing opportunity of hearing to the parties concerned. Since the property auctioned is a dwelling house of the petitioner and the stay order passed by this Court is operating till date, I hereby provide that meanwhile the petitioner shall not be dispossessed from the house in question. With the aforesaid observations/directions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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