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2016 (4) TMI 964 - KARNATAKA HIGH COURT

2016 (4) TMI 964 - KARNATAKA HIGH COURT - TMI - Maintainability 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 ple .....

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d 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or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of principles of natural justice, or when the vires of the statute is under challenge.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 e .....

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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 .....

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first instance, the entertainability or otherwise of the writ petition by keeping in view the position of law, as above. - WRIT PETITION NO.28182/2013 (GM-DRT) - Dated:- 22-3-2016 - MR. ABDUL NAZEER, MR. ASHOK B. HINCHIGERI AND MR. A.N.VENUGOPALA GOWDA, JJ. For The Petitioner : Sri R.L. Patil, Senior Adv. for Sri Ashish Krupakar, Adv. For The Respondent : Sri R. Ashok Kumar, Adv. for R1;, Sri K.V. Shyam Prasad, Adv. for R2 and R3 ORDER In view of an order dated 13.09.2013, passed by the learned .....

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d this Bench to answer the said question. 2. Reference was made by the learned Single Judge, in view of the divergent views of the two Division Benches in W.A.No.6368/2011 decided on 21.11.2011, since reported in 2013 (1) AKR 370, (for short 'Hotel Vandana Palace case') and W.A.No.635/2013 decided on 18.03.2013, since reported in 2014 (1) AKR 40 (for short 'Smt. Lily Joseph case'). The conflict in the aforementioned two judgments centers round the availability of writ remedy agai .....

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tlement' proposal of the petitioners, and for grant of the consequential reliefs. 4. As this Bench is only required to answer the aforesaid question and lay down the principle of law, it is unnecessary to state the facts of the case in detail. 5. The petitioners borrowed loan from the respondent No.1 (for short 'the Bank') and their account was treated on 30.09.2010, as Non-performing Asset. A demand notice dated 22.12.2010, under S.13(2) of the Act, was issued by the Bank. S.A.No.39 .....

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os. 2 and 3, in the form of sealed Tenders having been accepted on 14.06.2013 by the Bank, the Tribunal having found the said appeal to be devoid of merit and dismissed the appeal, this writ petition was filed. 6. Respondents having contended that the writ petition is not maintainable on the ground that an appeal remedy is provided to the Debts Recovery Appellate Tribunal, under S.18 of the Act and reliance having been placed on the judgment in the case of Smt. Lily Joseph and the petitioner hav .....

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requires to be conclusively addressed by an appropriate Bench to be constituted by the Hon'ble Chief Justice and the Registry having been directed to obtain orders, the Hon'ble Chief Justice has passed the order dated 27.01.2014 and constituted the Special Bench. Hence, the matter is before us. 7. Sri. R.L. Patil, learned Senior Advocate, at the threshold, vehemently contended that the reference itself is bad. He submitted that S.9(xii) of the Karnataka High Court Act, 1961 requires all .....

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alace, the judgment rendered in the case of Smt. Lily Joseph, being per incuriam, an uncalled for reference was made. 8. Sri R. Ashok Kumar, learned advocate, on the other hand, contended that the Hon'ble Chief Justice has the absolute prerogative of constituting the Benches and allocation of the work to the learned Judges. He submitted that the powers of the Chief Justice to constitute Benches and allocate the work to the learned Judges is traceable under Articles 225 and 226 of the Constit .....

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e would address the preliminary objection raised with regard to the maintainability of the reference made by the Hon'ble Chief Justice. 10. What a learned Single Judge should do, if he feels that the decision of the Division Bench is required to be reconsidered was the subject matter of consideration by the Apex Court, in LALA SHRI BHAGAWAN AND ANOTHER Vs. RAM CHAND AND ANOTHER, AIR 1965 SC 1767.. Therein, it has been held as follows: "It is hardly necessary to emphasise that considerat .....

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That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety". (emphasis supplied) 11. In Tribhovandas Purushottamdas Thakkar Vs. Ratilal Motilal Patel AIR 1968 SC 372, on the very same question, Apex Court has held as follows: "10. ………When it appears to a Single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts i .....

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of the Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A Single Judge does not by himself refer the matter to the Full Bench: he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleague, refer the case; that does not mean, however, that .....

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er and who can direct any particular matter to be placed for hearing before any particular Bench of any strength." (emphasis supplied) 13. In Narasimha Setty v. Padma Setty ILR 1998 Karn. 3230, with regard to the competency of a Single Judge to refer a case to a Full Bench is concerned, after having noticed the provisions contained in the Karnataka High Court Act, 1961 and the scope and ambit of the powers of the Chief Justice with regard to the posting of the cases before different Benches .....

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examine the question." (emphasis supplied) 14. In State of Karnataka v. Sri. B. Krishna Bhat, 2001 (2) KLJ 1 (FB), a Five Judge Bench, considering the scope of the power and authority of the Chief Justice in regard to the practice and procedure of the High Court in hearing and deciding the cases, and the fact of S.9(xii) and other provisions of the Karnataka High Court Act and power and authority of the Chief Justice in the matter of constitution of Benches and allocation of judicial work .....

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the different category of cases, the Chief Justice should follow the statutory provisions or rules. The power of Chief Justice in regard to constitution of Benches and allocation of judicial work has nothing to do with fixing of quorum for hearing of cases, under Section 9(xii) of the H.C. Act. (iii) However, he has the discretion to refer any matter in regard to which a quorum has been fixed, to a larger Bench. Therefore, the Notification dated 8-7-1997 allocating Single Judge matter to Divisio .....

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and the position of law having been well settled, we are of the opinion that the course adopted by the learned Single Judge, directing the Registry to place the matter before the Hon'ble Chief Justice, to pass an order for constitution of an appropriate Bench to conclusively address the issue raised, cannot be said to be incorrect. Learned Single Judge has acted on healthy principles of judicial decorum and propriety and the order passed by the Hon'ble Chief Justice is in accordance wit .....

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roperty bearing No.256, III Main, Banashankari III Stage, II Phase, VI Block, Bangalore-85. Original title deeds of the property was deposited with the Bank i.e., at the time of availing the loan. Since the petitioners committed default in repaying the loan, the Bank issued notice under S.13(2) of the Act and took steps under S.13(4) in respect of the said property. Auction notice was published and bid of respondent Nos.2 and 3 was accepted. Feeling aggrieved, the petitioners filed S.A.No.688/20 .....

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18. Undisputedly, security interest, within the meaning of S.2(zf) of the Act, was created in respect of the aforesaid property, which is a 'secured asset', within the meaning of S.2(zc), in favour of the 'secured creditor' - respondent No.1, within the meaning of S.2(zd). On failure to repay the loan amount, which was declared as non- performing asset, respondent No.1 enforced its security interest over the secured asset. 19. A perusal of S.13 of the SARFAESI Act shows that wit .....

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t or realizing the secured asset. S.17 confers right to any aggrieved person to question the 'measures' referred to in sub-section(4) of S.13 of the Act, when taken by the secured creditor. Thus, if any aggrieved person has got any grievance against any 'measures' taken under sub-section(4) of S.13 of the Act, he can approach the Tribunal for the relief. 20. In Union Bank of India v. Panchanan Subudhi, (2010) 15 SCC 552, the appellant extended financial facility to the respondent .....

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iling a writ petition and during its pendency, approached the Bank for 'one time settlement'. The Bank agreed for settlement but the respondent failed to abide by the conditions of the settlement. Consequently, Bank issued notice for possession of the secured assets which was challenged by filing another writ petition, which was disposed of directing the loanee to pay the amount in instalments for liquidating the dues of the Bank. The Bank having assailed the said order, the Apex Court w .....

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editious adjudication and recovery of debts due to Banks and financial institutions and for matters connected therewith or incidental thereto. The RDDB Act creates a special machinery for speedy recovery of dues of the Banks and financial institutions. S.17 of the RDDB Act deals with jurisdiction, powers and authority of the Tribunals. S.18 bars the jurisdiction of ordinary Court or Authority, in respect of matters falling within the jurisdiction of the Tribunal, as specified in S.17. An appeal .....

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principles of natural justice and, subject to the rules framed. The Tribunal and Appellate Tribunal have been conferred with powers to regulate their own procedure. Thus, it is clear that the Tribunal and Appellate Tribunal which are specialized institutions with expertise, have been established to decide the matter(s) preferred before them. 22. While dealing with the purpose of the RDDB Act and how it works, Apex Court, in UNITED BANK OF INDIA Vs. SATYAWATI TONDON, (2010) 8 SCC 110, has held as .....

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of the amount determined by the Tribunal or the Appellate Tribunal but also bars the jurisdiction of all courts except the Supreme Court and the High Courts in relation to the matters specified in Section 17….." 23. The SARFAESI Act was enacted to regulate securitisation and reconstruction of financial assets and enforcement of security interest and for matters connected therewith or incidental thereto. Inter alia, one of the main objects of the SARFAESI Act is to clothe the Banks an .....

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gs and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better avai .....

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regulate Securitisation and reconstruction of financial assets and enforcement of security interest. The Act enables the Banks and financial institutions to realize long-term assets, manage problems of liquidity, asset liability mismatches and improve recovery by exercising powers to take possession of securities, sell them and reduce non-performing assets by adopting measures for recovery of reconstruction. *** *** *** 35. In order to prevent misuse of such wide powers and to prevent prejudice .....

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f. 36. The intention of the legislature is, therefore, clear that while the Banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the DRT with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee." (emphasis su .....

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idence produced by the parties, comes to the conclusion that the measures taken by the secured creditor are not in consonance with sub-section (4) of Section 13, then it can direct the secured creditor to restore management of the business or possession of the secured assets to the borrower. On the other hand, if the Tribunal finds that the recourse taken by the secured creditor under sub-section (4) of Section 13 is in accordance with the provisions of the Act and the Rules made thereunder, the .....

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. If the Tribunal fails to decide the application within a maximum period of four months, then either party can move the Appellate Tribunal for issue of a direction to the Tribunal to dispose of the application expeditiously." (emphasis supplied) 26. Sri R.L. Patil, contended that the power of judicial review under Articles 226 and 227 of the Constitution is an inviolable part of the basic structure of the Constitution and the same cannot be denied much less ousted by the statutes made by t .....

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eing a misnomer to call as an alternate remedy, the writ petition filed is maintainable. (with regard to the tenability or otherwise of the contention requiring the pre- deposit i.e., to maintain an appeal under S.18 of SARFAESI Act, see para Nos. 47 and 48 infra). 27. Sri Ashok Kumar, on the other hand, contended that the writ petition cannot be entertained contrary to the RDDB Act, which is a special enactment, providing for an appellate remedy, which is efficacious. He submitted that there is .....

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urts over all Courts and Tribunals. However, the power of judicial superintendence under Article 227 of the Constitution has to be exercised sparingly when there is a patent error or gross injustice in the view taken by the subordinate Court / Tribunal (See JASBIR SINGH Vs. STATE OF PUNJAB, (2006) 8 SCC 294) Judicial review under the said Articles is a basic feature of the Constitution. 29. In L. CHANDRA KUMAR Vs. UNION OF INDIA, (1997) 3 SCC 261,, Apex Court, while dealing with the essential an .....

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High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the prot .....

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ionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [1969] 3 SCC 769)." (emphasis supplied) 31. In Mafatlal Industries Ltd. v. Union of India .....

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legal position has been summarised and the relevant portion reads as follows: "108(i)..... While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed o .....

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d on the ground of existence of an alternative remedy, under S.17 of the SARFAESI Act, Apex Court has held as follows: "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 under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadha .....

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l facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) the 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." (emphasis supplied) 33. In NIVEDITA SHARMA Vs. CELLULAR OPERATORS ASSN. OF INDIA, (2011) 14 SCC 337, Apex Court has held, that when a statutory forum is created .....

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ourt would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Consti .....

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precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised. 81. Should the courts determine on merits of the case or should they preferably answer the prelimi .....

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mary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case." (emphasis supplied) 35. In Cicily Kallarackal Vs. Vehicle Factory, (2012) 8 SCC 524, Apex Court has issued a direction of caution, that it will not be a proper exercise of th .....

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Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India." (emphasis supplied) 36. In CIT Vs. Chhabil Dass Agrawal (2014) 1 SCC 603, Apex Court has held, that when a statutory forum is created by law for redressal of grievances, a writ p .....

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ed writ petition. The writ petition though admitted on the first date of hearing, was subsequently disposed of on the ground that the petitioner can avail the alternate remedy as provided by the Central Excise Act. The said order having been questioned, in the appeal, the Division Bench allowed the same on the ground that the writ court, in exercise of the power under Article 226 of the Constitution of India, has vast powers to decide any question that may arise under the provisions of the Centr .....

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he Appellate Tribunal, while allowing the appeal, it has been held as follows: "15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified .....

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., without filing the appeal before the DRAT, under S.18 of the Act being the correct position of law, the decision in the case of Smt.Lily Joseph (supra), expressing a contrary view is unsound and is liable to be declared as per incuriam. 39. Sri R. Ashok Kumar, on the other hand supported the conclusion arrived at in Smt.Lily Joseph case and contended that the finding recorded on point (ii), in the case of Hotel Vandana Place case, being in ignorance of well settled principles of law and also .....

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detail. He submitted that the decision in the case of Kanaiyalal Lalchand Sachdev has been misread and misinterpreted without any attempt being made to understand the legislative intent behind the SARFAESI Act and true purport of the ratio of law laid down in the said decision by the Division Bench which has decided Hotel Vandana Place case (supra). He further submitted that the judgment in Smt.Lily Joseph case has been correctly rendered, based on the law laid down in Kanaiyalal Lalchand Sachde .....

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on Bench, while answering point No.(ii) formulated for consideration, at para 11, in the case of Hotel Vandana Palace, has stated (at paras 24, 25 and 26) as follows: (i) The writ petition was not been dismissed on the ground of maintainability of non exercising the power (must be read as non availing the remedy) granted under S.18 of the Act, but was rejected on the ground that the earlier writ petition challenging the sale notice had been dismissed. (ii) Without deposit of either 50% or 25%, a .....

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and in such a case, the person who has lost the property in a sale conducted by the Bank for non payment of more than 5 crores of rupees, it is difficult for a person like appellant to approach the Tribunal to file an appeal by depositing 50% or 25% of the amount due. In the peculiar facts and circumstances of the case, with the aforesaid reasoning, the writ petition was held as maintainable. 42. In Smt. Lily Joseph case (supra), the challenge in the writ petition was to an order passed by the T .....

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e is no express declaration of law or authority of a general nature, to reckon the decision as binding, as is contemplated by Article 141 of the Constitution. 43. Presently, we shall deal with the concept of per incuriam. 44. A decision rendered in ignorance of a binding precedent and/or in ignorance of the statutory provision, would be held to have been rendered per incuriam (See para 98 of the decision in Subhash Chandra v. Delhi subordinate services selection board (2009) 15 SCC 458). 45. In .....

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COOPERATIVE BANK LIMITED AND ANOTHER, Vs. IKPAL AND OTHERS, (2013) 10 SCC 83, the material facts were that the respondent availed housing loan from the appellant by mortgaging certain immovable property. As the respondent committed default in repayment of the loan, the Bank issued notice to him under S.13(2) of the SARFAESI Act. Later, the Bank published auction notice and the highest bid received was accepted. The auction-purchaser deposited 25% of the sale consideration and did not make payme .....

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ertificate issued in favour of the auction-purchaser. The learned Single Judge held that the mandatory requirement of Rule 9 was not followed and that therefore despite the remedy of appeal to the borrower, provided under S.17 of the SARFAESI Act, a case was made out under S.226 of the Constitution and the same was affirmed by the Division Bench. Feeling aggrieved, the Bank and the auction- purchaser approached the Apex Court. While allowing the appeal and setting aside the impugned orders and b .....

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the High Court in extraordinary jurisdiction under Article 226 of the Constitution of India. *** *** *** 27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented." (emphasi .....

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gh Court and the borrower having approached the Apex Court, the question raised for consideration was "whether the Appellate Tribunal has the jurisdiction to exempt the person, preferring an appeal under Section 18 of the Act from making any pre-deposit in terms of the said provision?". While deciding the case, Apex Court has held as follows: "7. Section 18(1) of the Act confers a statutory right on a person aggrieved by any order made by the Debts Recovery Tribunal under Section .....

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ub-section, the Appellate Tribunal has the power to reduce the amount, for the reasons to be recorded in writing, to not less than twenty-five per cent of the debt, referred to in the second proviso. Thus, there is an absolute bar to entertainment of an appeal under Section 18 of the Act unless the condition precedent, as stipulated, is fulfilled. Unless the borrower makes, with the Appellate Tribunal, a pre-deposit of fifty per cent of the debt due from him or determined, an appeal under the sa .....

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so cannot be said to be onerous. Thus, we hold that the requirement of pre-deposit under sub-section (1) of Section 18 of the Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. In that view of the matter, no court, much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the Statute. We have no hesitation in holding that deposit under the second proviso to S .....

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need not make any deposit to maintain the appeal was assailed by the Bank and also by the auction-purchaser by filing writ petitions and by contending that the amount paid / deposited by the auction-purchaser cannot be adjusted towards the deposit to be made by the borrowers / guarantors, while preferring appeal under S.18 of the SARFAESI Act and also that there cannot be complete waiver of the deposit, as was prayed on the part of the guarantors, before the Appellate Tribunal and was accepted .....

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of the SARFAESI Act, has held as follows: "17………..The language used in this section is very plain and clear, making it unambiguously clear that any person aggrieved by the order of the Debts Recovery Tribunal passed under Section 17 may prefer appeal to the Debts Recovery Appellate Tribunal by paying necessary fee and the second proviso to sub-section (1) makes it clear that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fif .....

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hile exercising the discretion conferred on it, provided for under the third proviso to sub-section (1), the Appellate Tribunal has been mandated not to reduce the deposit amount to not less than twenty-five per cent of the debt referred to in the second proviso. 18. While such is the legal mandate, in the impugned order, the first respondent Appellate Tribunal has granted complete waiver of the deposit amount to the appellants/guarantors, which has not been contemplated under law. In the interp .....

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or absurd must be eschewed and the Court must adopt principles of reasonable and harmonious construction in consonance with the avowed statutory purpose. Hence, impugned order passed by the first respondent Appellate Tribunal is absolutely bereft of any power granted to it and therefore, the same needs to be set aside." (emphasis supplied) 49. In T.P.VISHNU KUMAR Vs. CANARA BANK, P.N. ROAD, TIRUPPUR AND OTHERS, (2013) 10 SCC 652, the material facts were that the Bank filed O.A. before the D .....

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Bench having allowed the writ appeals by holding that the borrower had not availed the alternative remedy available under S.20 of the RDDB Act, Apex Court was approached for relief. Considering the purpose for which the Tribunal has been established and the Act providing for a mechanism by way of appeal as per S.20 to the Appellate Tribunal, it was held as follows: "10……When the Act itself provides for a mechanism, by an appeal under Section 20 of the Act, in our view, the Hig .....

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Court under Article 226 of the Constitution to issue prerogative writs being very wide and that there can be no express limitation on exercise of that power, by expressing serious concern, has held as follows: " 44…..we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising the power under Article 226 of the Constitution. *** *** *** 55. It is a matter of serious concern that despite repeated .....

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f the Constitution of India reads as follows: "141. Law declared by Supreme Court to be binding on all courts.- The law declared by Supreme Court shall be binding on all courts within the territory of India." Article 141 of the Constitution provides that the law declared by the Apex Court shall be binding on all Courts within the territory of India. Therefore, the ratio decidendi declared in Satyawati Tondon's case was binding and ought to have been applied, when Hotel Vandana Pala .....

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i R.L. Patil, submitted that the Judgment rendered in Hotel Vandana Palace case (supra) was questioned before the Apex Court and the appeal was dismissed, in the case of VASU P. SHETTY Vs. HOTEL VANDANA PALACE, (2014) 5 SCC 660 and hence the doctrine of merger applies. He further submitted that the decision in Hotel Vandana Palace case (supra), thus, having attained finality is a binding precedent. 52.2. Sri R. Ashok Kumar, on the other hand, submitted that, the mere fact that appeal preferred a .....

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and differ from the conclusion reached on point No.(ii) in Hotel Vandana Palace case by the Division Bench. 52.3 In view of the rival contentions, the question that arises is 'whether, the decision in VASU P. Shetty case has approved the view of the Division Bench on point No.(ii) raised in Hotel Vandana Palace case ? 52.4. In Kunhayammed Vs. State of Kerala, (2000) 6 SCC 359, Apex Court has reiterated that the doctrine of merger is not of universal application or unlimited application; the .....

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nto. 52.6. In VASU P. SHETTY's case (supra), the opinion of the Division Bench in Hotel Vandana Palace case (supra) on the interpretation of sub-rules (5) and (6) of Rule 8 of the Rules was held as flawless and the only question considered as can be seen from para 19 of the decision is, as to whether it can be held that the borrower in the case had waived the mandatory provisions of Rules 8 and 9 of the Rules. Hence, it cannot be said that the remaining part of the decision in the case of Ho .....

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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 re .....

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