TMI Blog2016 (7) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) has been dismissed. Further prayer has been made for quashing the notices issued by the Bank under section 13(2) of the SARFAESI Act and the application for possession of the property filed by the respondent Bank. Direction has also been sought to the respondents not to initiate coercive methods against the petitioners under the SARFAESI Act. 2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. Petitioner Nos. 1 and 2 applied for housing loan for the purchase of a residential house and its construction with the intention to create an asset and also derive income from the same and repay the loan amount. Respondent No.1 Bank sanctioned housing loan of ₹ 3.63 crores i.e. ₹ 2.43 crores for the purchase of the house and ₹ 1.20 crores for the construction. Accordingly, a loan agreement for housing loan was executed on 24.3.2013, Annexure P.2 between petitioner No.1 alongwith his wife Smt.Seema Sharma and Punjab National Bank, Sector 17, Chandigarh. The monthly instalment of ₹ 2,42,607/- was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interest of the investors of the National Spot Exchange Limited scam. Accordingly, respondent Bank issued notices for the possession of the property under Section 13(4) of the SARFAESI Act against the petitioners. The petitioners approached this court through CWP No.4874 of 2016. Vide order dated 15.3.2016, Annexure P.11, the writ petition was dismissed with the liberty to the petitioners to approach the DRT-I, Chandigarh. In the meantime, symbolic possession was taken by the respondent Bank which was intimated through notice dated 18.3.2016, Annexure P.12. The petitioners approached the DRT-I Chandigarh by filing SA No.83 of 2016 to bring forth the lapses as well as shortcomings which were the mandatory technicalities to be followed by the respondent Bank before the process of sale of property was initiated but the same were not followed. The proceedings after the declaration of the NPA were upheld to be in consonance with the provisions of the SARFAESI Act as well as the rules vide order dated 7.6.2016, Annexure P.13. According to the petitioners, the auction process was held by the bank but the Bank was not able to sell the property on the prescribed date of auction i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) 77. So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesar s wife the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and nonefficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and sat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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