REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of SLP(C) No.10145 of 2010)
United Bank of India ...Appellant
Versus
Satyawati Tondon and others ...Respondents
JUDGMENT
1. Leave granted.
2. With a view to give impetus to the industrial development of the country,
the Central and State Governments encouraged the banks and other financial
institutions to formulate liberal policies for grant of loans and other financial
facilities to those who wanted to set up new industrial units or expand the
existing units. Many hundred thousand took advantage of easy financing by the
banks and other financial institutions but a large number of them did not repay
the amount of loan, etc. Not only this, they instituted frivolous cases and
succeeded in persuading the Civil Courts to pass orders of injunction against the
steps taken by banks and financial institutions to recover their dues. Due to lack
of adequate infrastructure and non-availability of manpower, the regular Courts
could not accomplish the task of expeditiously adjudicating the cases instituted
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by banks and other financial institutions for recovery of their dues. As a result,
several hundred crores of public money got blocked in unproductive ventures. In
order to redeem the situation, the Government of India constituted a committee
under the chairmanship of Shri T. Tiwari to examine the legal and other
difficulties faced by banks and financial institutions in the recovery of their dues
and suggest remedial measures. The Tiwari Committee noted that the existing
procedure for recovery was very cumbersome and suggested that special
tribunals be set up for recovery of the dues of banks and financial institutions by
following a summary procedure. The Tiwari Committee also prepared a draft of
the proposed legislation which contained a provision for disposal of cases in
three months and conferment of power upon the Recovery Officer for
expeditious execution of orders made by adjudicating bodies. The issue was
further examined by the Committee on the Financial System headed by Shri M.
Narasimham. In its First Report, the Narasimham Committee also suggested
setting up of special tribunals with special powers for adjudication of cases
involving the dues of banks and financial institutions.
After considering the reports of the two Committees and taking
cognizance of the fact that as on 30-9-1990 more than 15 lakh cases filed by
public sector banks and 304 cases filed by financial institutions were pending in
various Courts for recovery of debts, etc. amounting to Rs.6000 crores, the
Parliament enacted the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (for short, `the DRT Act’). The new legislation facilitated
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creation of specialised forums i.e., the Debts Recovery Tribunals and the Debts
Recovery Appellate Tribunals for expeditious adjudication of disputes relating to
recovery of the debts due to banks and financial institutions. Simultaneously,
the jurisdiction of the Civil Courts was barred and all pending matters were
transferred to the Tribunals from the date of their establishment.
An analysis of the provisions of the DRT Act shows that primary object of
that Act was to facilitate creation of special machinery for speedy recovery of the
dues of banks and financial institutions. This is the reason why the DRT Act not
only provides for establishment of the Tribunals and the Appellate Tribunals with
the jurisdiction, powers and authority to make summary adjudication of
applications made by banks or financial institutions and specifies the modes of
recovery 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. The Tribunals and the
Appellate Tribunals have also been freed from the shackles of procedure
contained in the Code of Civil Procedure. To put it differently, the DRT Act has
not only brought into existence special procedural mechanism for speedy
recovery of the dues of banks and financial institutions, but also made provision
for ensuring that defaulting borrowers are not able to invoke the jurisdiction of
Civil Courts for frustrating the proceedings initiated by the banks and other
financial institutions.
4
For few years, the new dispensation worked well and the officers
appointed to man the Tribunals worked with great zeal for ensuring that cases
involving recovery of the dues of banks and financial institutions are decided
expeditiously. However, with the passage of time, the proceedings before the
Tribunals became synonymous with those of the regular Courts and the lawyers
representing the borrowers and defaulters used every possible mechanism and
dilatory tactics to impede the expeditious adjudication of such cases. The flawed
appointment procedure adopted by the Government greatly contributed to the
malaise of delay in disposal of the cases instituted before the Tribunals.
The survey conducted by the Ministry of Finance, Government of India
revealed that as in 2001, a sum of more than Rs.1,20,000/- crores was due to
the banks and financial institutions and this was adversely affecting the economy
of the country. Therefore, the Government of India asked the Narasimham
Committee to suggest measures for expediting the recovery of debts due to
banks and financial institutions. In its Second Report, the Narasimham
Committee noted that the non-performing assets of most of the public sector
banks were abnormally high and the existing mechanism for recovery of the
same was wholly insufficient. In Chapter VIII of the Report, the Committee
noted that the evaluation of legal framework has not kept pace with the
changing commercial practice and financial sector reforms and as a result of that
the economy could not reap full benefits of the reform process. The Committee
made various suggestions for bringing about radical changes in the existing
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adjudicatory mechanism. By way of illustration, the Committee referred to the
scheme of mortgage under the Transfer of Property Act and suggested that the
existing laws should be changed not only for facilitating speedy recovery of the
dues of banks, etc. but also for quick resolution of disputes arising out of the
action taken for recovery of such dues. The Andhyarujina Committee constituted
by the Central Government for examining banking sector reforms also considered
the need for changes in the legal system. Both, the Narasimham and
Andhyarujina Committees suggested enactment of new legislation for
securitisation and empowering the banks and financial institutions to take
possession of the securities and sell them without intervention of the court. The
Government of India accepted the recommendations of the two committees and
that led to enactment of the Securitization and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (for short `the SARFAESI Act’),
which can be termed as one of the most radical legislative measures taken by
the Parliament for ensuring that dues of secured creditors including banks,
financial institutions are recovered from the defaulting borrowers without any
obstruction. For the first time, the secured creditors have been empowered to
take steps for recovery of their dues without intervention of the Courts or
Tribunals.
3. Section 13 of the SARFAESI Act contains detailed mechanism for
enforcement of security interest. Sub-section (1) thereof lays down that
notwithstanding anything contained in Sections 69 or 69-A of the Transfer of
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Property Act, any security interest created in favour of any secured creditor may
be enforced, without the intervention of the court or tribunal, by such creditor in
accordance with the provisions of this Act. Sub-section (2) of Section 13
enumerates first of many steps needed to be taken by the secured creditor for
enforcement of security interest. This sub-section provides that if a borrower,
who is under a liability to a secured creditor, makes any default in repayment of
secured debt and his account in respect of such debt is classified as non-
performing asset, then the secured creditor may require the borrower by notice
in writing to discharge his liabilities within sixty days from the date of the notice
with an indication that if he fails to do so, the secured creditor shall be entitled
to exercise all or any of its rights in terms of Section 13(4). Sub-section (3) of
Section 13 lays down that notice issued under Section 13(2) shall contain details
of the amount payable by the borrower as also the details of the secured assets
intended to be enforced by the bank or financial institution. Sub-section (3-A) of
Section 13 lays down that the borrower may make a representation in response
to the notice issued under Section 13(2) and challenge the classification of his
account as non-performing asset as also the quantum of amount specified in the
notice. If the bank or financial institution comes to the conclusion that the
representation/objection of the borrower is not acceptable, then reasons for non-
acceptance are required to be communicated within one week. Sub-section (4)
of Section 13 specifies various modes which can be adopted by the secured
creditor for recovery of secured debt. The secured creditor can take possession
of the secured assets of the borrower and transfer the same by way of lease,
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assignment or sale for realising the secured assets. This is subject to the
condition that the right to transfer by way of lease, etc. shall be exercised only
where substantial part of the business of the borrower is held as secured debt. If
the management of whole or part of the business is severable, then the secured
creditor can take over management only of such business of the borrower which
is relatable to security. The secured creditor can appoint any person to manage
the secured asset, the possession of which has been taken over. The secured
creditor can also, by notice in writing, call upon a person who has acquired any
of the secured assets from the borrower to pay the money, which may be
sufficient to discharge the liability of the borrower. Sub-section (7) of Section
13 lays down that where any action has been taken against a borrower under
sub-section (4), all costs, charges and expenses properly incurred by the secured
creditor or any expenses incidental thereto can be recovered from the borrower.
The money which is received by the secured creditor is required to be held by
him in trust and applied, in the first instance, for such costs, charges and
expenses and then in discharge of dues of the secured creditor. Residue of the
money is payable to the person entitled thereto according to his rights and
interest. Sub-section (8) of Section 13 imposes a restriction on the sale or
transfer of the secured asset if the amount due to the secured creditor together
with costs, charges and expenses incurred by him are tendered at any time
before the time fixed for such sale or transfer. Sub-section (9) of Section 13
deals with the situation in which more than one secured creditor has stakes in
the secured assets and lays down that in the case of financing a financial asset
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by more than one secured creditor or joint financing of a financial asset by
secured creditors, no individual secured creditor shall be entitled to exercise any
or all of the rights under sub-section (4) unless all of them agree for such a
course. There are five unnumbered provisos to Section 13(9) which deal with
pari passu charge of the workers of a company in liquidation. The first of these
provisos lays down that in the case of a company in liquidation, the amount
realised from the sale of secured assets shall be distributed in accordance with
the provisions of Section 529-A of the Companies Act, 1956. The second proviso
deals with the case of a company being wound up on or after the
commencement of this Act. If the secured creditor of such company opts to
realise its security instead of relinquishing the same and proving its debt under
Section 529(1) of the Companies Act, then it can retain sale proceeds after
depositing the workmen’s dues with the liquidator in accordance with Section
529-A. The third proviso requires the liquidator to inform the secured creditor
about the dues payable to the workmen in terms of Section 529-A. If the amount
payable to the workmen is not certain, then the liquidator has to intimate the
estimated amount to the secured creditor. The fourth proviso lays down that in
case the secured creditor deposits the estimated amount of the workmen’s dues,
then such creditor shall be liable to pay the balance of the workmen’s dues or
entitled to receive the excess amount, if any, deposited with the liquidator. In
terms of the fifth proviso, the secured creditor is required to give an undertaking
to the liquidator to pay the balance of the workmen’s dues, if any. Sub-section
(10) of Section 13 lays down that where dues of the secured creditor are not
9
fully satisfied by the sale proceeds of the secured assets, the secured creditor
may file an application before the Tribunal under Section 17 for recovery of
balance amount from the borrower. Sub-section (11) states that without
prejudice to the rights conferred on the secured creditor under or by this section,
it shall be entitled to proceed against the guarantors or sell the pledged assets
without resorting to the measures specified in clauses (a) to (d) of sub-section
(4) in relation to the secured assets. Sub-section (12) of Section 13 lays down
that rights available to the secured creditor under the Act may be exercised by
one or more of its officers authorised in this behalf. Sub-section (13) lays down
that after receipt of notice under sub-section (2), the borrower shall not transfer
by way of sale, lease or otherwise (other than in the ordinary course of his
business) any of his secured assets referred to in the notice without prior written
consent of the secured creditor. In terms of Section 14, the secured creditor can
file an application before the Chief Metropolitan Magistrate or the District
Magistrate, within whose jurisdiction the secured asset or other documents
relating thereto are found for taking possession thereof. If any such request is
made, the Chief Metropolitan Magistrate or the District Magistrate, as the case
may be, is obliged to take possession of such asset or document and forward the
same to the secured creditor.
4. Section 17 speaks of the remedies available to any person including
borrower who may have grievance against the action taken by the secured
creditor under sub-section (4) of Section 13. Such an aggrieved person can make
10
an application to the Tribunal within 45 days from the date on which action is
taken under that sub-section. By way of abundant caution, an Explanation has
been added to Section 17(1) and it has been clarified that the communication of
reasons to the borrower in terms of Section 13(3-A) shall not constitute a ground
for filing application under Section 17(1). Sub-section (2) of Section 17 casts a
duty on the Tribunal to consider whether the measures taken by the secured
creditor for enforcement of security interest are in accordance with the
provisions of the Act and the Rules made thereunder. If the Tribunal, after
examining the facts and circumstances of the case and evidence 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, then,
notwithstanding anything contained in any other law for the time being in force,
the secured creditor can take recourse to one or more of the measures specified
in Section 13(4) for recovery of its secured debt. Sub-section (5) of Section 17
prescribes the time-limit of sixty days within which an application made under
Section 17 is required to be disposed of. The proviso to this sub-section
envisages extension of time, but the outer limit for adjudication of an application
is four months. If the Tribunal fails to decide the application within a maximum
period of four months, then either party can move the Appellate Tribunal for
11
issue of a direction to the Tribunal to dispose of the application expeditiously.
Section 18 provides for an appeal to the Appellate Tribunal.
5. Section 34 lays down that no Civil Court shall have jurisdiction to entertain
any suit or proceeding in respect of any matter which a Tribunal or Appellate
Tribunal is empowered to determine. It further lays down that no injunction shall
be granted by any Court or other authority in respect of any action taken or to
be taken under the SARFAESI Act or the DRT Act. Section 35 of the SARFAESI
Act is substantially similar to Section 34(1) of the DRT Act. It declares that the
provisions of this Act shall have effect, notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or any
instrument having effect by virtue of any such law.
6. However, effective implementation of the SARFAESI Act was delayed by
more than two years because several writ petitions were filed in the High Courts
and this Court questioning its vires. The matter was finally decided by this Court
in Mardia Chemicals v. Union of India (2004) 4 SCC 311 and the validity of
the SARFAESI Act was upheld except the condition of deposit of 75% amount
enshrined in Section 17(2). The Court referred to the recommendations of the
Narasimham and Andhyarujina Committees on the issue of constitution of special
tribunals to deal with cases relating to recovery of the dues of banks etc. and
observed:
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“One of the measures recommended in the circumstances was to
vest the financial institutions through special statutes, the power of
sale of the assets without intervention of the court and for
reconstruction of assets. It is thus to be seen that the question of
non-recoverable or delayed recovery of debts advanced by the
banks or financial institutions has been attracting attention and the
matter was considered in depth by the Committees specially
constituted consisting of the experts in the field. In the prevalent
situation where the amounts of dues are huge and hope of early
recovery is less, it cannot be said that a more effective legislation
for the purpose was uncalled for or that it could not be resorted to.
It is again to be noted that after the Report of the Narasimham
Committee, yet another Committee was constituted headed by Mr.
Andhyarujina for bringing about the needed steps within the legal
framework. We are, therefore, unable to find much substance in
the submission made on behalf of the petitioners that while the
Recovery of Debts Due to Banks and Financial Institutions Act was
in operation it was uncalled for to have yet another legislation for
the recovery of the mounting dues. Considering the totality of
circumstances and the financial climate world over, if it was
thought as a matter of policy to have yet speedier legal method to
recover the dues, such a policy decision cannot be faulted with nor
is it a matter to be gone into by the courts to test the legitimacy of
such a measure relating to financial policy.”(emphasis supplied)
This Court then held that the borrower can challenge the action taken under
Section 13(4) by filing an application under Section 17 of the SARFAESI Act and
a civil suit can be filed within the narrow scope and on the limited grounds on
which they are permissible in the matters relating to an English mortgage
enforceable without intervention of the Court. In paragraph 31 of the judgment,
the Court observed as under:
“In view of the discussion held in the judgment and the findings
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 Debts 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
13provisions 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 availability of capital
liquidity and resources to help in growth of the economy of the
country and welfare of the people in general which would subserve
the public interest.”(emphasis supplied)
7. In the light of the above, we shall now consider whether the Division
Bench of the High Court was justified in restraining the appellant from
proceeding under Section 13(4) of the SARFAESI Act against the property of
respondent No.1.
8. A perusal of the record shows that the appellant sanctioned a term loan of
Rs.22,50,000/- in favour of M/s. Pawan Color Lab [through its proprietor Pawan
Singh (respondent No.2)] some time in November, 2004. Respondent No.1 gave
guarantee for repayment of the loan and mortgaged her property bearing House
No. 752/062, Bakshi Khurd, Daraganj, Pargana and Tehsil Sadar, District
Allahabad by deposit of title deeds. She also submitted an affidavit dated
28.12.2004 and executed agreement of guarantee dated 29.12.2004 making
herself liable for repayment of the loan amount with interest.
9. After one year and six months, the appellant sent letter dated 6.5.2006 to
respondent Nos.1 and 2 pointing out that repayment of loan was highly irregular.
After another one year, the account of respondent No.2 was classified as Non-
Performing Asset. On 19.7.2007, the appellant sent separate letters to
14respondent Nos. 1 and 2 requiring them to deposit the outstanding dues
amounting to Rs.23,78,478/-. Thereupon, respondent No.1 deposited a sum of
Rs.50,000/- and gave written undertaking to pay the balance amount in
instalments. However, she did not fulfil her promise to repay the remaining
amount. This compelled the appellant to issue notice to respondent Nos.1 and 2
under Section 13(2) requiring them to pay Rs.23,22,972/- along with future
interest and incidental expenses within 60 days. Upon receipt of the notice,
respondent No.1 offered to pay a sum of Rs.18 lakhs for settlement of the loan
account, but the appellant did not accept the offer and filed an application under
Section 14 of the SARFAESI Act, which was allowed by District
Magistrate/Collector, Allahabad vide his order dated 25.8.2008. Thereafter, the
appellant issued notice dated 21.1.2009 to respondent Nos.1 and 2 under
Section 13(4) of the SARFAESI Act.
10. Faced with the imminent threat of losing the mortgaged property,
respondent No.1 filed C.M.W.P. No.55375 of 2009 and prayed that the appellant
herein may be restrained from taking coercive action in pursuance of the notices
issued under Section 13(2) and (4) and order dated 25.8.2008 passed by District
Magistrate/Collector, Allahabad. She pleaded that the notices issued by the
appellant for recovery of the outstanding dues are ex facie illegal and liable to be
quashed because no action had been taken against the borrower i.e., respondent
No.2 for recovery of the outstanding dues.
15
11. In the counter affidavit filed on behalf of the appellant, it was pleaded
that action initiated against respondent No.1 was consistent with the provisions
of SARFAESI Act and writ petitioner (respondent No.1 herein) was bound to
discharge her obligations to pay the outstanding dues and there was no merit in
her challenge to the notices issued under Section 13(2) and 13(4) or the order
passed under Section 14. It was further pleaded that the writ petition is liable to
be dismissed because an alternative remedy is available to the petitioner under
Section 17 of the SARFAESI Act.
12. The Division Bench of the High Court did not even advert to the
appellant’s plea that the writ petition should not be entertained because an
effective alternative remedy was available to the writ petitioner under Section 17
of the SARFAESI Act and passed the impugned order restraining the appellant
from taking action in furtherance of notice issued under Section 13(4) of the
SARFAESI Act. The reason which prompted the High Court to pass the
impugned interim order and operative portion thereof are extracted below:
“Learned counsel for the petitioner has urged that the loan was
taken by respondent No.4 for opening a colour lab at 50/43, Raj
Complex, K.P. Kakkar Road, Allahabad, but the loan has not been
repaid by respondent No.4 and the bank is proceeding against the
petitioner who is the guarantor of the loan. It is not clear from the
documents produced by learned counsel for the bank as to what
steps have been taken by the bank against the borrower of the
loan and merely issuance of notice under section 13(2) of the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 against the borrower is
not sufficient. The bank should have proceeded against the
borrower and exhausted all the remedies against him and
thereafter the bank could have proceeded against the guarantor.16
Until further orders of this court, the respondents are restrained
from proceeding under section 13(4) of the Act 2002 with regard to
petitioner’s property who was the guarantor of the loan. However,
if any possession has been taken by the bank then the property
shall not be sold to any one else and the petitioner shall be
continued in possession of the property.”13. We have heard learned counsel for the appellant and perused the record.
Normally, this Court does not interfere with the discretion exercised by the High
Court to pass an interim order in a pending matter but, having carefully
examined the matter, we have felt persuaded to make an exception in this case
because the order under challenge has the effect of defeating the very object of
the legislation enacted by the Parliament for ensuring that there are no
unwarranted impediments in the recovery of the debts, etc. due to banks, other
financial institutions and secured creditors.
14. The question whether the appellant could have issued notices to
respondent No.1 under Section 13(2) and (4) and filed an application under
Section 14 of the SARFAESI Act without first initiating action against the
borrower i.e., respondent No.2 for recovery of the outstanding dues is no longer
res integra. In Bank of Bihar Ltd. v. Damodar Prasad (1969) 1 SCR 620,
this Court considered and answered in affirmative the question whether the bank
is entitled to recover its dues from the surety and observed:
“It is the duty of the surety to pay the decretal amount. On such
payment he will be subrogated to the rights of the creditor under
Section 140 of the Indian Contract Act, and he may then recover
the amount from the principal. The very object of the guarantee is
defeated if the creditor is asked to postpone his remedies against
17the surety. In the present case the creditor is banking company. A
guarantee is a collateral security usually taken by a banker. The
security will become useless if his rights against the surety can be
so easily cut down.”In State Bank of India v. M/s. Indexport Registered and others (1992) 3
SCC 159, this Court held that the decree-holder bank can execute the decree
against the guarantor without proceeding against the principal borrower and
then proceeded to observe:
“The execution of the money decree is not made dependent on first
applying for execution of the mortgage decree. The choice is left
entirely with the decree-holder. The question arises whether a
decree which is framed as a composite decree, as a matter of law,
must be executed against the mortgage property first or can a
money decree, which covers whole or part of decretal amount
covering mortgage decree can be executed earlier. There is nothing
in law which provides such a composite decree to be first executed
only against the [principal debtor].”In Industrial Investment Bank of India Limited v. Biswanath
Jhunjhunwala (2009) 9 SCC 478, this Court again held that the liability of the
guarantor and principal debtor is co-extensive and not in alternative and the
creditor/decree-holder has the right to proceed against either for recovery of
dues or realization of the decretal amount.
15. In view of the law laid down in the aforementioned cases, it must be held
that the High Court completely misdirected itself in assuming that the appellant
could not have initiated action against respondent No.1 without making efforts
for recovery of its dues from the borrower – respondent No.2.
1816. The facts of the present case show that even after receipt of notices
under Section 13(2) and (4) and order passed under Section 14 of the SARFAESI
Act, respondent Nos.1 and 2 did not bother to pay the outstanding dues. Only a
paltry amount of Rs.50,000/- was paid by respondent No.1 on 29.10.2007. She
did give an undertaking to pay the balance amount in installments but did not
honour her commitment. Therefore, the action taken by the appellant for
recovery of its dues by issuing notices under Section 13(2) and 13(4) and by
filing an application under Section 14 cannot be faulted on any legally
permissible ground and, in our view, the Division Bench of the High Court
committed serious error by entertaining the writ petition of respondent No.1.
17. There is another reason why the impugned order should be set aside. If
respondent No.1 had any tangible grievance against the notice issued under
Section 13(4) or action taken under Section 14, then she could have availed
remedy by filing an application under Section 17(1). The expression `any person’
used in Section 17(1) is of wide import. It takes within its fold, not only the
borrower but also guarantor or any other person who may be affected by the
action taken under Section 13(4) or Section 14. Both, the Tribunal and the
Appellate Tribunal are empowered to pass interim orders under Sections 17 and
18 and are required to decide the matters within a fixed time schedule. It is
thus evident that the remedies available to an aggrieved person under the
SARFAESI Act are both expeditious and effective. Unfortunately, the High Court
overlooked the settled law that the High Court will ordinarily not entertain a
19petition 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 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,
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.
18. 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. It is true that the rule of
20exhaustion 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 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 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 Corporation v. Registrar of Trade Marks,
Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil
Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments,
then the High Court may, after considering all the relevant parameters and public
interest, pass appropriate interim order.
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19. In Thansingh Nathmal v. Superintendent of Taxes (1964) 6 SCR
654, the Constitution Bench considered the question whether the High Court of
Assam should have entertained the writ petition filed by the appellant under
Article 226 of the Constitution questioning the order passed by the Commissioner
of Taxes under the Assam Sales Tax Act, 1947. While dismissing the appeal, the
Court observed as under:
“The jurisdiction of the High Court under Article 226 of the
Constitution is couched in wide terms and the exercise
thereof is not subject to any restrictions except the
territorial restrictions which are expressly provided in the
Articles. But the exercise of the jurisdiction is
discretionary: it is not exercised merely because it is lawful
to do so. The very amplitude of the jurisdiction demands
that it will ordinarily be exercised subject to certain self-
imposed limitations. Resort that jurisdiction is not intended
as an alternative remedy for relief which may be obtained
in a suit or other mode prescribed by statute. Ordinarily
the Court will not entertain a petition for a writ under
Article 226, where the petitioner has an alternative
remedy, which without being unduly onerous, provides an
equally efficacious remedy. Again the High Court does not
generally enter upon a determination of questions which
demand an elaborate examination of evidence to establish
the right to enforce which the writ is claimed. The High
Court does not therefore act as a court of appeal against
the decision of a court or tribunal, to correct errors of fact,
and does not by assuming jurisdiction under Article 226
trench upon an alternative remedy provided by statute for
obtaining relief. Where it is open to the aggrieved
petitioner to move another tribunal, or even itself in
another jurisdiction for obtaining redress in the manner
provided by a statute, the High Court normally will not
permit by entertaining a petition under Article 226 of the
Constitution the machinery created under the statute to be
bypassed, and will leave the party applying to it to seek
resort to the machinery so set up.”22
20. In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433,
a three-Judge Bench considered the question whether a petition under Article
226 of the Constitution should be entertained in a matter involving challenge to
the order of the assessment passed by the competent authority under the
Central Sales Tax Act, 1956 and corresponding law enacted by the State
legislature and answered the same in negative by making the following
observations:
“Under the scheme of the Act, there is a hierarchy of authorities
before which the petitioners can get adequate redress against the
wrongful acts complained of. The petitioners have the right to
prefer an appeal before the Prescribed Authority under sub-section
(1) of Section 23 of the Act. If the petitioners are dissatisfied with
the decision in the appeal, they can prefer a further appeal to the
Tribunal under sub-section (3) of Section 23 of the Act, and then
ask for a case to be stated upon a question of law for the opinion
of the High Court under Section 24 of the Act. The Act provides for
a complete machinery to challenge an order of assessment, and the
impugned orders of assessment can only be challenged by the
mode prescribed by the Act and not by a petition under Article 226
of the Constitution. It is now well recognised that where a right or
liability is created by a statute which gives a special remedy for
enforcing it, the remedy provided by that statute only must be
availed of. This rule was stated with great clarity by Willes, J. in
Wolverhampton New Waterworks Co. v. Hawkesford in the
following passage:“There are three classes of cases in which a liability may
be established founded upon statute. . . . But there is a
third class, viz. where a liability not existing at common
law is created by a statute which at the same time gives
a special and particular remedy for enforcing it. . .the
remedy provided by the statute must be followed, and it
is not competent to the party to pursue 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. and has been
23reaffirmed by the Privy Council in Attorney-General of Trinidad and
Tobago v. Gordon Grant & Co. Ltd. and Secretary of State v. Mask
& Co. 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.”21. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of
Orissa (supra) were echoed in Assistant Collector of Central Excise,
Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1
SCC 260 in the following words:
“Article 226 is not meant to short-circuit or circumvent statutory
procedures. It is only where statutory remedies are entirely ill-
suited to meet the demands of extraordinary situations, as for
instance where the very vires of the statute is in question or where
private or public wrongs are so inextricably mixed up and the
prevention of public injury and the vindication of public justice
require it that recourse may be had to Article 226 of the
Constitution. But then the Court must have good and sufficient
reason to bypass the alternative remedy provided by statute. Surely
matters involving the revenue where statutory remedies are
available are not such matters. We can also take judicial notice of
the fact that the vast majority of the petitions under Article 226 of
the Constitution are filed solely for the purpose of obtaining interim
orders and thereafter prolong the proceedings by one device or the
other. The practice certainly needs to be strongly discouraged.”22. In Punjab National Bank v. O.C. Krishnan and others (2001) 6 SCC
569, this Court considered the question whether a petition under Article 227 of
the Constitution was maintainable against an order passed by the Tribunal under
Section 19 of the DRT Act and observed:
“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
24Act, 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 do not propose to
go into the correctness of the decision of the High Court and
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 a hierarchy of appeal provided in the Act,
namely, filing of an appeal under Section 20 and this fast-track
procedure cannot be allowed to be derailed either by 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 under an Act cannot expressly oust the
jurisdiction of the 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.”23. In CCT, Orissa and others v. Indian Explosives Ltd. (2008) 3 SCC
688, the Court reversed an order passed by the Division Bench of Orissa High
Court quashing the show cause notice issued to the respondent under the Orissa
Sales Tax Act by observing that the High Court had completely ignored the
parameters laid down by this Court in a large number of cases relating to
exhaustion of alternative remedy.
24. In City and Industrial Development Corporation v. Dosu Aardeshir
Bhiwandiwala and others (2009) 1 SCC 168, the Court highlighted the
parameters which are required to be kept in view by the High Court while
25exercising 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 to consider whether:(a) adjudication of writ petition involves any complex and
disputed questions of facts and whether they can be
satisfactorily resolved;(b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) 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.The Court in appropriate cases in its discretion may direct the State
or its instrumentalities as the case may be to file proper affidavits
placing all the relevant facts truly and accurately for the
consideration of the Court and particularly in cases where public
revenue and public interest are involved. Such directions are always
required to be complied with by the State. No relief could be
granted in a public law remedy as a matter of course only on the
ground that the State did not file its counter-affidavit opposing the
writ petition. Further, empty and self-defeating affidavits or
26statements of Government spokesmen by themselves do not form
basis to grant any relief to a person in a public law remedy to
which he is not otherwise entitled to in law.”25. In Raj Kumar Shivhare v. Assistant Director, Directorate of
Enforcement and another (2010) 4 SCC 772, the Court was dealing with the
issue whether the alternative statutory remedy available under the Foreign
Exchange Management Act, 1999 can be bypassed and jurisdiction under Article
226 of the Constitution could be invoked. After examining the scheme of the
Act, the Court observed:
“31. When a statutory forum is created by law for redressal of
grievance and that too in a fiscal statute, a writ petition should not
be entertained ignoring the statutory dispensation. In this case the
High Court is a statutory forum of appeal on a question of law.
That should not be abdicated and given a go-by by a litigant for
invoking the forum of judicial review of the High Court under writ
jurisdiction. The High Court, with great respect, fell into a manifest
error by not appreciating this aspect of the matter. It has however
dismissed the writ petition on the ground of lack of territorial
jurisdiction.32. No reason could be assigned by the appellant’s counsel to
demonstrate 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.”
26. In Modern Industries v. Steel Authority of India Limited (2010) 5
SCC 44, the Court held that where the remedy was available under the Interest
on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act,
1993, the High Court was not justified in entertaining a petition under Article 226
of the Constitution.
27
27. It is a matter of serious concern that despite repeated pronouncement of
this Court, the High Courts 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.
28. Insofar as this case is concerned, we are convinced that the High Court
was not at all justified in injuncting the appellant from taking action in
furtherance of notice issued under Section 13(4) of the Act.
29. In the result, the appeal is allowed and the impugned order is set aside.
Since the respondent has not appeared to contest the appeal, the costs are
made easy.
………………………………….J.
[G.S. Singhvi]
………………………………….J.
[Asok Kumar Ganguly]
New Delhi
July 26, 2010.
