TMI Blog2016 (4) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... TION NO. 1843 of 2016, CIVIL APPLICATION NO. 2578 of 2016 - - - Dated:- 11-4-2016 - MR. N.V.ANJARIA, J. FOR THE PETITIONER : MR AM PAREKH, ADVOCATE FOR THE RESPONDENT : MR SUDHIR NANAVATI, SR. ADVOCATE WITH MR BHAVESH CHOKSI FOR MRS VD NANAVATI, ADVOCATE COMMON CAV JUDGMENT The captioned petition was filed on 29th January, 2016. On 05th February, 2016 this Court issued Notice and granted ex-parte ad-interim relief. The aforesaid Civil Application under Article 226(3) of the Constitution for vacating the ad-interim relief was filed by the respondent on 14th March, 2016. It was adjourned to 29th March, 2016, then to 30th March, 2016, thereafter to 01th April, 2016 and further on 04th April, 2016. In course of said dates, the petitioner proposed terms of settlement which was ultimately not worked out as was not acceptable to respondent-Bank. 2. The learned advocates for the parties advanced arguments contesting the petition for final consideration of the controversy and the following order was passed on 07th April, 2016. Heard learned advocate Mr. A. M. Parekh for the petitioner and learned senior counsel Mr. Sudhir Nanavati assisted by learned advocate Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rajsinh Chudasama and Geetaba Vanrajsinh Chudasama for subject premises. The pendency of loan was mentioned therein. (iv) On 28th February, 2014 Mrs.Manjeet Kaur and Mr.Sandeep Harjit Singh executed a power of attorney in favour of Joytsnaben Yograjsinh Chudasama and Geetaba Vanrajsinh Chudasama wherein also pendency of loan is clearly mentioned. (v) Jyotsnaben Yograjsinh Chudasama and Geetaba Vanrajsinh Chudasama executed an agreement to sell in favour of the petitioner-Sonali Sunil Bhanushali on 26th July, 2014 in capacity as power of attorney holder of abovenamed original owners. On 03rd July, 2014 the petitioner-intending purchaser gave a public notice in daily newspaper inviting objections. (vi) On 27th August, 2014 the Bank issued notice under Section 13(2) of the SERFAESI Act. (vii) On 30th August, 2014 the petitioner instituted a Suit for specific performance of agreement to sell dated 26th June, 2014. (viii) On 23rd September, 2014 the applicant issued a demand notice in newspaper. (ix) On 25th September, 2014 said Joytsnaben Yograjsinh Chudasama and Geetaba Vanrajsinh Chudasama replied to above-mentioned demand notice. (x) On 07th October, 2014 in rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30th April, 2016 is figures at ₹ 48,31,209/- comprised of (i) outstanding loan amount being ₹ 33,69,517/-; (ii) overdue EMIs of ₹ 08,80,558/-; (iii) additional interest amount being ₹ 01,52,593/- and (iv) incidental charges being ₹ 04,28,541/-. It was submitted that in any case, Suit was instituted and an alternative remedy is also available to the petitioner. 5. In the proceedings before the learned District Magistrate since none appeared pursuant to the notice issued, it was ordered to affix the notice on the property-premises in question. As per the said order passed on 29th June, 2015, notice dated 14th May, 2015 came to be affixed on the subject matter property. The property in question is admittedly in possession of the present petitioner. In that view, it cold be submitted that notice of the proceedings under Section 14 before the District Magistrate having been affixed on the property, the petitioner who is in possession, cannot disclaim the knowledge thereof and therefore also the knowledge of proceedings before the District Magistrate. It was submitted that despite that the petitioner did not appear, thereafter petitioner cannot subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Bank Vs Ashok Saw Mill [(2009) 8 SCC 366], the Apex Court held that remedy by way of appeal under Section 17 is available not only upto the stage referable to Section 13(4), but even in respect of measures taken post- 13(4) stage. In the present case, the stage at which the petitioner is beset with, is such stage. The petitioner is aggrieved person for the purpose of Section 17 of the Act. In Kanaiyalal Lalchand Sachdev Vs State of Maharashtra [(2011) 2 SCC 782], the Supreme Court has stated that the measures under Section 14 constitutes the action taken after the stage of Section 13(4) and a remedy of appeal under Section 17 would be available. In that case, refusal by the High Court to entertain the writ petition was held to be fully justified. 6.2 The submission of learned advocate for the petitioner that the petitioner is purchaser under agreement to sell and therefore not being a borrower, cannot avail the remedy of Appeal is devoid of substance. On a plain reading of Section 17 of the Act which provides a remedy of Appeal, its language is wide enough when it provides that any aggrieved person including the borrower may file Appeal. Therefore not only the borrower but any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the special statute has to be necessarily resorted to before a party can be permitted to invoke the extra-ordinary jurisdiction and writ powers of this Court under Article 226 of the Constitution. In such matters, the normal rule of relegating the party to the alternative remedy and not allowing the approaching to the High Court straightway would require a steadfast adherence. 6.5 The above proposition draws support from the following observations of the Apex Court in Satyawati Tondon (supra), in which the view was highlighted thus, It is true that the rule of 20 exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously imped ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
