High Court of H.P. REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 24

th

DAY OF AUGUST, 2022.

BEFORE

HON’BLE MR. JUSTICE TARLOK SINGH CHAUHAN

&

HON’BLE MR. JUSTICE VIRENDER SINGH

CIVIL WRIT PETITION No. 5743 of 2022 &

CIVIL WRIT PETITION No.5744 of 2022.

1. CIVIL WRIT PETITION No. 5743 of 2022.

Between:-

SH. VINOD KUMAR, S/O SH. MOTI LAL

AGGARWAL, AGE 57 YEARS, R/O PANDIT

VARI, PO PREM NAGAR, DEHRADUN

(UTTRANCHAL).

…..PETITIONER.

(BY SH. AJAY KOCHHAR AND SH. VARUN

CHAUHAN, ADVOCATES)

AND

1.HIMACHAL PRADESH FINANCIAL

CORPORATION, NEW HIMRUS BUILDING,

CIRCULAR, SHIMLA, 171001, THROUGH

ITS GENERAL MANAGER.

…..RESPONDENT.

2.M/S RENUKA ENGINEERING WORKS, A-3

INDUSTRIAL AREA, PAONTA SAHIB,

DISTRICT SIRMAUR, H.P. THROUGH ITS

PROMOTER.

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…...PROFORMA RESPONDENT.

2. CIVIL WRIT PETITION No. 5744 of 2022.

Between:-

1.SH. VINOD KUMAR, S/O SH. MOTI LAL

AGGARWAL, AGE 57 YEARS, R/O PANDIT

VARI, PO PREM NAGAR, DEHRADUN

(UTTRAKHAND)

2.SH. NARINDER BANSAL, S/O SH. NARAIN

BANSAL, R/O 12, DAV COLLEGE ROAD,

KARAMPUR, DEHRADUN (UTTRAKHAND).

.....PETITIONERS.

(BY SH. AJAY KOCHHAR AND SH. VARUN

CHAUHAN, ADVOCATES)

AND

1.HIMACHAL PRADESH FINANCIAL

CORPORATION, NEW HIMRUS BUILDING,

CIRCULAR, SHIMLA, 171001, THROUGH

ITS GENERAL MANAGER.

…..RESPONDENT.

2.M/S SHREEN ELECTRICALS WIRE (P)

LTD., KALA AMB, (ON SKATI ROAD),

TEHSIL NAHAN, DISTRICT SIRMAUR,

THROUGH ITS DIRECTORS.

…...PROFORMA RESPONDENT.

________________________________________________________________

These petitions coming on for admission before

notice this day, Hon’ble Mr. Justice Tarlok Singh Chauhan,

passed the following:

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O R D E R

Since, both these petitions have been filed with

identical prayers, therefore, they were taken up together for

consideration and are being disposed of by a common

judgment.

2. At the outset, the substantive prayers as made

in these petitions need to be noticed and the same read as

under:-

CWP No. 5743 of 2022.

“(i)That the impugned Order dated 01.06.2022

passed by Ld. Debt Recovery Tribunal-1, Chandigarh

in OA 184/2006, Annexure P-6, may kindly be set

aside and quashed.

(ii)That the IAs filed by the petitioner Annexure

P-3 may kindly be directed to be decided within a

time bound manner.”

CWP No. 5744 of 2022.

“(i)That the impugned Order dated 01.06.2022

passed by Ld. Debt Recovery Tribunal-1, Chandigarh

in OA 185/2006, Annexure P-10, may kindly be set

aside and quashed.

(ii)That the IAs filed by the petitioners Annexure

P-3 and Annexure P-4 may kindly be directed to be

decided within a time bound manner.”

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3. As would be noticed from the prayers reproduced

hereinabove, the petitioner(s) have questioned the order

passed by the Debts Recovery Tribunal-I, Chandigarh, on

various grounds. But the question is whether these

petitions would be maintainable when an alternative

remedy is available to the petitioner(s) under Section 20 of

The Recovery of Debts Due to Banks and Financial

Institutions Act, 1993, (for short ‘Act’) which provides for an

appeal before the Appellate Tribunal.

4. The issue is no longer res integra in view of the

various judgments of the Hon’ble Supreme Court on the

subject, some of which are noticed and cited in this order.

5. We may conveniently refer to a judgment

rendered by the Hon’ble Supreme Court in Punjab

National Bank vs. O.C. Krishnan and others (2001) 6

SCC 569, wherein it was observed as under:-

“5. In our opinion, the order which was passed by the

Tribunal directing sale of mortgaged property was

appealable under Section 20 of the Recovery of

Debts Due to Banks and Financial Institutions Act,

1993 (for short "the Act"). The High Court ought not

to have exercised its jurisdiction under Article 227 in

view of the provision for alternative remedy

contained in the Act. We Jo not propose to go into the

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correctness of the decision of the High Court an I

whether the order passed by the Tribunal was correct

or not has to be decided before an appropriate

forum.

6. The Act has been enacted with a view to provide a

special procedure for recovery of debts due to the

banks and the financial institutions. There is

hierarchy of appeal provided in the Act, namely, filing

of an appeal under Section 20 and this last track

procedure cannot be allowed to be derailed either b>

taking recourse to proceedings under Articles 226

and 227 of the Constitution or by filing a civil suit,

which is expressly barred. Even though a provision

court under Articles 226 and 227 of the Constitution,

nevertheless when there is an alternative remedy

available judicial prudence demands that the court

refrains from exercising its jurisdiction under the said

constitutional provisions. This was a case where the

High Court should not have entertained the petition

under Article 227 of the Constitution and should have

directed the respondent to take recourse to the

appeal mechanism provided by the Act.”

6. Similar reiteration of law can be found in the

judgment of the Hon’ble Supreme Court in State Bank of

India vs. Allied Chemical Laboratories and another

(2006) 9 SCC 252.

7. This judgment in turn has been followed and

relied upon by the Hon’ble Supreme Court in a fairly recent

judgment rendered in Phoenix ARC Private Limited vs.

Vishwa Bharati Vidya Mandir and others (2022) 5

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SCC 345. It shall be profitable to extract the relevant

observations made in paras 8 to 21 of the judgment which

read as under:-

“8. It is the case on behalf of the appellant that the

writ petitions against the communication dated

13.08.2015 proposing to take further action under

Section 13(4) of the SARFAESI Act and that too

against a private Assets Reconstructing Company

(ARC) shall not be maintainable. It is also the case on

behalf of the appellant that assuming that the

communication dated 13.08.2015 can be said to be

a notice under Section 13(4) of the SARFAESI Act, in

view of the alternative statutory remedy available by

way of appeal under Section 17 of the SARFAESI Act,

the High Court ought not to have entertained the

writ petitions.

9. While considering the issue regarding the

maintainability of and/or entertainability of the writ

petitions by the High Court in the instant case, a few

decisions of this Court relied upon by the learned

Senior Advocate appearing on behalf of the appellant

– ARC are required to be referred to.

10. In United Bank of India vs. Satyawati Tandon

(2010) 8 SCC 110, it was observed and held by this

Court that the remedies available to an aggrieved

person against the action taken under section 13(4)

or Section 14 of the SARFAESI Act, by way of appeal

under Section 17, can be said to be both expeditious

and effective. On maintainability of or entertainability

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of a writ petition under Article 226 of the Constitution

of India, in a case where the effective remedy is

available to the aggrieved person, it is observed and

held in the said decision in paragraphs 43 to 46 as

under:-(SCC pp.123-24)

“43. Unfortunately, the High Court overlooked the

settled law that the High Court will ordinarily not

entertain a petition under Article 226 of the

Constitution if an effective remedy is available to

the aggrieved person and that this rule applies with

greater rigour in matters involving recovery of

taxes, cess, fees, other types of public money and

the dues of banks and other financial institutions. In

our view, while dealing with the petitions involving

challenge to the action taken for recovery of the

public dues, etc. the High Court must keep in mind

that the legislations enacted by Parliament and

State Legislatures for recovery of such dues are a

code unto themselves inasmuch as they not only

contain comprehensive procedure for recovery of

the dues but also envisage constitution of quasi-

judicial bodies for redressal of the grievance of any

aggrieved person. Therefore, in all such cases, the

High Court must insist that before availing remedy

under Article 226 of the Constitution, a person must

exhaust the remedies available under the relevant

statute.

44. While expressing the aforesaid view, we are

conscious that the powers conferred upon the High

Court under Article 226 of the Constitution to issue

to any person or authority, including in appropriate

cases, any Government, directions, orders or writs

including the five prerogative writs for the

enforcement of any of the rights conferred by Part

III or for any other purpose are very wide and there

is no express limitation on exercise of that power

but, at the same time, 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 power under Article 226 of

the Constitution.

45. It is true that the rule of 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

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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.

46. 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 impedes execution of

projects of public importance and disables them

from discharging their constitutional and legal

obligations towards the citizens. In cases relating to

recovery of the dues of banks, financial institutions

and secured creditors, stay granted by the High

Court would have serious adverse impact on the

financial health of such bodies/institutions, which

(sic will) ultimately prove detrimental to the

economy of the nation. Therefore, the High Court

should be extremely careful and circumspect in

exercising its discretion to grant stay in such

matters. Of course, if the petitioner is able to show

that its case falls within any of the exceptions

carved out in Baburam Prakash Chandra

Maheshwari v. Antarim Zila Parishad [AIR 1969 SC

556], Whirlpool Corpn. v. Registrar of Trade Marks

[(1998) 8 SCC 1] and Harbanslal Sahnia v. Indian

Oil Corpn. Ltd. [(2003) 2 SCC 107] and some other

judgments, then the High Court may, after

considering all the relevant parameters and public

interest, pass an appropriate interim order.”

11. In City and Industrial Development Corpn. Vs.

Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, it

was observed by this Court in SCC p.175, paragraph

30 that the Court while exercising its jurisdiction

under Article 226 is duty bound to consider whether

the petitioner has any alternative or effective

remedy for the resolution of the dispute.”

12. In Kanaiyalal Lalchand Sachdev vs. State of

Maharashtra (2011) 2 SCC 782, after referring to the

earlier decisions of this Court in the cases of Sadhana

Lodh Vs. National insurance Co. Ltd. and Anr., (2003)

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3 SCC 524; Surya Dev Rai Vs. Ram Chander Rai and

Ors., (2003) 6 SCC 675 and State Bank of India Vs.

Allied Chemical Laboratories and Anr., (2006) 9 SCC

252, while upholding the order passed by the High

Court dismissing the writ petition on the ground that

an efficacious remedy is available under Section 17

of the SARFAESI Act, it was observed 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.

13. Similar view has been expressed by this Court in

subsequent decisions in the case of General

Manager, Sri Siddeshwara Cooperative Bank Limited

v. Ikbal (2013) 10 SCC 83 as well as in the case of

Agarwal Tracom Private Limited v. Punjab National

Bank (2018) 1 SCC 626.

14. Applying the law laid down by this court in the

aforesaid decisions, it is required to be considered

whether, in the facts and circumstances of the case,

the High Court is justified in entertaining the writ

petitions against the communication dated

13.08.2015 and to pass the ex-parte ad interim order

virtually stalling/restricting the proceedings under the

SARFAESI Act by the creditor.

15. It is required to be noted that it is the case on

behalf of the appellant that as such the

communication dated 13.08.2015 cannot be said to

be a notice under Section 13(4) of the SARFAESI Act

at all. According to the appellant, after the notice

under Section 13(2) of the SARFAESI Act was issued

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in the year 2013 and thereafter despite the Letter of

Acceptance dated 27.02.2015, no further amount

was paid, the appellant called upon the borrowers to

make the payment within two weeks failing which a

further proceeding under Section 13(4) of the

SARFAESI Act was proposed. Thus, according to the

appellant, it was a proposed action. Therefore, the

writ petitions filed against the proposed action under

Section 13(4) of the SARFAESI Act was not

maintainable and/or entertainable at all.

16. Assuming that the communication dated

13.08.2015 can be said to be a notice under Section

13(4) of the SARFAESI Act, in that case also, in view

of the statutory remedy available under Section 17

of the SARFAESI Act and in view of the law laid down

by this Court in the cases referred to hereinabove,

the writ petitions against the notice under Section

13(4) of the SARFAESI Act was not required to be

entertained by the High Court. Therefore, the High

Court has erred in entertaining the writ petitions

against the communication dated 13.08.2015 and

also passing the ex-parte ad-interim orders directing

to maintain the status quo with respect to

possession of secured properties on the condition

directing the borrowers to pay Rs. 1 crore only (in all

Rs.3 crores in view of the subsequent orders passed

by the High Court extending the ex- parte ad-interim

order dated 26.08.2015) against the total dues of

approximate Rs.117 crores. Even the High Court

ought to have considered and disposed of the

application for vacating the ex-parte ad- interim

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relief, which was filed in the year 2016 at the earliest

considering the fact that a large sum of Rs.117

crores was involved.

17. Now, in so far as the reliance placed upon the

decision of this Court in the case of J. Rajiv

Subramaniyan and Anr. v. Pandiyas (2014) 5 SCC

651 by the learned senior counsel appearing on

behalf of the borrowers in support of his submission

that writ petition would be maintainable, it is to be

noted that in the aforesaid case, the learned counsel

appearing on behalf of the Bank did not press the

maintainability and/or entertainability of the writ

petition under Article 226 and therefore, this Court

had no occasion to consider the entertainability

and/or maintainability of the writ petition. Therefore,

the aforesaid decision is not of any assistance to the

respondents – borrowers.

18. Even otherwise, it is required to be noted that a

writ petition against the private financial institution

– ARC – appellant herein under Article 226 of the

Constitution of India against the proposed

action/actions under Section 13(4) of the SARFAESI

Act can be said to be not maintainable. In the

present case, the ARC proposed to take

action/actions under the SARFAESI Act to recover the

borrowed amount as a secured creditor. The ARC as

such cannot be said to be performing public

functions which are normally expected to be

performed by the State authorities. During the

course of a commercial transaction and under the

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contract, the bank/ARC lent the money to the

borrowers herein and therefore the said activity of

the bank/ARC cannot be said to be as performing a

public function which is normally expected to be

performed by the State authorities. If proceedings

are initiated under the SARFAESI Act and/or any

proposed action is to be taken and the borrower is

aggrieved by any of the actions of the private

bank/bank/ARC, borrower has to avail the remedy

under the SARFAESI Act and no writ petition would lie

and/or is maintainable and/or entertainable.

Therefore, decisions of this Court in the cases of

Praga Tools Corpn. v. C.A. Imanual (1969) 1 SCC 585

and Ramesh Ahluwalia v. State of Punjab (2012) 12

SCC 331 relied upon by the learned counsel

appearing on behalf of the borrowers are not of any

assistance to the borrowers.

19. Now, so far as the submission on behalf of the

borrowers that in exercise of the powers under

Article 226 of the Constitution, this Court may not

interfere with the interim / interlocutory orders is

concerned, the decision of this Court in the case of

Mathew K.C. (supra) is required to be referred to.

20. In State Bank of Travancore v. Mathew K.C.

(2018) 3 SCC 85 after referring to and/or considering

the decision of this Court in CIT v. Chhabil Dass

Agarwal (2014) 1 SCC 603, it was observed and held

in paragraph 5 as under: (Mathew K.C. Case, SCC

p.89)

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“5. We have considered the submissions on behalf

of the parties. Normally this Court in exercise of

jurisdiction under Article 136 of the Constitution is

loath to interfere with an interim order passed in a

pending proceeding before the High Court, except

in special circumstances, to prevent manifest

injustice or abuse of the process of the court. In

the present case, the facts are not in dispute. The

discretionary jurisdiction under Article 226 is not

absolute but has to be exercised judiciously in the

given facts of a case and in accordance with law.

The normal rule is that a writ petition under Article

226 of the Constitution ought not to be entertained

if alternate statutory remedies are available,

except in cases falling within the well-defined

exceptions as observed in CIT v. Chhabil Dass

Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1

SCC 603], as follows: (SCC p. 611, para 15)

“15. Thus, while it can be said that this Court

has recognised some exceptions to the rule of

alternative remedy i.e. where the statutory

authority 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 the

principles of natural justice, the proposition

laid down in Thansingh Nathmal case

[Thansingh Nathmal v. Supt. of Taxes, AIR

1964 SC 1419] , Titaghur Paper Mills case

[Titaghur Paper Mills Co. Ltd. v. State of

Orissa, (1983) 2 SCC 433] and other similar

judgments that the High Court will not

entertain a petition under Article 226 of the

Constitution if an effective alternative remedy

is available to the aggrieved person or the

statute under which the action complained of

has been taken itself contains a mechanism

for redressal of grievance still holds the field.

Therefore, when a statutory forum is created

by law for redressal of grievances, a writ

petition should not be entertained ignoring

the statutory dispensation.”

21. Applying the law laid down by this Court in the

case of Mathew K.C. (supra) to the facts on hand, we

are of the opinion that filing of the writ petitions by

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the borrowers before the High Court under Article

226 of the Constitution of India is an abuse of

process of the Court. The writ petitions have been

filed against the proposed action to be taken under

Section 13(4). As observed hereinabove, even

assuming that the communication dated 13.08.2015

was a notice under Section 13(4), in that case also,

in view of the statutory, efficacious remedy

available by way of appeal under Section 17 of the

SARFAESI Act, the High Court ought not to have

entertained the writ petitions. Even the impugned

orders passed by the High Court directing to

maintain the status quo with respect to the

possession of the secured properties on payment of

Rs.1 crore only (in all Rs.3 crores) is absolutely

unjustifiable. The dues are to the extent of

approximately Rs.117 crores. The ad-interim relief

has been continued since 2015 and the secured

creditor is deprived of proceeding further with the

action under the SARFAESI Act. Filing of the writ

petition by the borrowers before the High Court is

nothing but an abuse of process of Court. It appears

that the High Court has initially granted an ex-parte

ad-interim order mechanically and without assigning

any reasons. The High Court ought to have

appreciated that by passing such an interim order,

the rights of the secured creditor to recover the

amount due and payable have been seriously

prejudiced. The secured creditor and/or its assignor

have a right to recover the amount due and payable

to it from the borrowers. The stay granted by the

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High Court would have serious adverse impact on

the financial health of the secured creditor/assignor.

Therefore, the High Court should have been

extremely careful and circumspect in exercising its

discretion while granting stay in such matters. In

these circumstances, the proceedings before the

High Court deserve to be dismissed.”

8. This Court is duty bound and has infact followed

the law laid down by the Hon’ble Supreme Court in

Phoenix ARC’s case (supra) in its latest pronouncement

rendered in CWP No. 2199 of 2019 in case titled M/s

Malhotra Clinics Private Limited others vs. The

Deputy General Manager and others, decided on

03.08.2022.

9. Thus, what can be taken to be the settled law is

that when a specific remedy is available to the aggrieved

party, the High Court in exercise of its jurisdiction under

Article 226 of the Constitution is not justified in interfering

with the orders of the DRT to examine the correctness of the

rejection of the applications, as in the instant case, the Act

itself provides for a mechanism by way of an appeal

against the orders of the DRT to the Appellate Tribunal.

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10. This was so held by the Hon’ble Supreme Court

in T.P. Vishnu Kumar vs. Canara Bank, P.N. Road,

Tiruppur and others (2013) 10 SCC 652. It shall be apt

to reproduce the relevant observations of the judgment as

contained in paras 6 to 11 which read as under:-

“6.The Debt Recovery Tribunals in the country are

established for expeditious adjudication and recovery

of debts due to banks and financial institutions. It

was noticed that banks and financial institutions have

been experiencing considerable difficulties in

recovering loans and enforcement of securities

charged with them and therefore the actual need was

felt to work out a suitable mechanism through which

the dues to the banks and financial institutions could

be realized without delay. It was noticed that on

30.09.1990 more than fifteen lacs of cases filed by

the public sector banks and about 304 cases filed by

the financial institutions were pending in various

courts, recovery of debts involved more than Rs.5622

crores in dues of public sector banks and about 391

crores of dues of the financial institutions. The

locking up of such huge amount of money in

litigation, it was noticed, prevents proper utilization

and recycling of the funds for the development of the

country. It is in the above scenario, Parliament

enacted The Recovery of Debts due to Banks and

Financial Institutions Act, 1993 (Act 51 of 1993) The

Act itself provides the mechanism to an aggrieved

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party, if he is dissatisfied with an order passed by the

tribunal.

7.Section 20 of the Act says that:

“20. Appeal to the Appellate Tribunal. (1)…...

any person aggrieved by an order made, or deemed

to have been made, by a Tribunal under the Act

may prefer an appeal to an Appellate Tribunal

having jurisdiction in the matter.”

8. Section 18 of the Act deals with Bar of Jurisdiction

which says:

“18. Bar of jurisdiction.- On and from the

appointed day, no court or other authority shall

have, or be entitled to exercise, any jurisdiction,

powers or authority (except the Supreme Court,

and a High Court exercising jurisdiction under

articles 226 and 227 of the Constitution) in relation

to the matters specified in section 17.”

9. Powers, which were conferred on the civil court,

now stands conferred on a Tribunal under Section 17

of the Act thereby it can deal with applications from

banks and financial institutions for recovery of debts

due to such banks and financial institutions. We are

of the view when a specific remedy is made

available to the aggrieved party under Section 20 of

the Act, learned Single Judge of the High Court, in

exercise of its jurisdiction under Article 226 of the

Constitution of India, was not justified in interfering

with the orders passed by the Debt Recovery

Tribunal.

10. Powers of the High Court under Article 226

cannot be invoked in the matter of recovery of dues

under the Act, unless there is any statutory violation

resulting in prejudice to the party or where such

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proceedings or action is wholly arbitrary,

unreasonable and unfair. When the Act itself

provides for a mechanism, by an appeal under

Section 20 of the Act, in our view, the High Court is

not justified in invoking jurisdiction under Article 226

of the Constitution of India to examine that the

rejection of the applications by the tribunal was

correct or not. The petitioner and the contesting

respondents have no case that either the bank or the

tribunal had violated any statutory provisions by

rejecting their applications.

11. A writ petition was preferred against the

rejection of applications and the same were

entertained by the learned Single Judge and decided

on merits and which in our view is impermissible

while exercising its jurisdiction under Article 226 of

the Constitution. If the correctness of otherwise of

each and every interim order passed by the Tribunal,

is going to be tested in a writ court, it will only

defeat the object and purpose of establishing such

tribunal. We already noticed that due to the

intervention of the writ court, the matter got delayed

for four years defeating the very purpose and object

of the Act. We therefore, find no merit in these

petitions and the same are dismissed.”

11. In view of the aforesaid discussion and for the

reasons stated above, obviously, the instant petitions are

not maintainable in view of the alternative remedy available

to the petitioner(s) and consequently the same are

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dismissed. However, the dismissal of the petitions will not

come in the way of the petitioner(s) in case he/they

approach DRAT for the redressal of his/their grievances

within the time frame as provided under the Act. All

pending applications stand disposed of.

(Tarlok Singh Chauhan)

Judge

(Virender Singh)

Judge

24

th

August, 2022.

(krt)

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