2019 (8) TMI 488 - HC - Central Excise

Maintainability of petition - availability of alternative remedy - Section 35(B) of the Customs Act - HELD THAT - The grounds raised in the present writ petition may not be an exemption for not availing an appeal remedy, the writ petition is liable to be rejected. Reliance placed in the case of AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE AND ANOTHER VERSUS MATHEW K.C. 2018 (2) TMI 25 - SUPREME COURT where it was held that The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference. This Court is of the view that the petitioner could be granted liberty to file an appeal against the order, within a stipulated time - appeal disposed off.

Summary

Issues:
The judgment discusses the availability of statutory remedies under the SARFAESI Act and the DRT Act, the necessity of exhausting alternative remedies before approaching the High Court under Article 226 of the Constitution, and the implications of granting ex parte interim orders in financial matters.

Analysis:
The judgment emphasizes the principle that High Courts should not entertain petitions under Article 226 if an effective statutory remedy is available to the aggrieved party. Referring to various cases, the judgment underscores that the legislations for recovery of public dues provide comprehensive procedures and quasi-judicial bodies for redressal. It criticizes the trend of High Courts ignoring statutory remedies under the SARFAESI Act and the DRT Act, stressing the importance of exhausting alternative remedies before resorting to Article 226.

Furthermore, the judgment cites instances where High Courts stayed proceedings under Section 13(4) of the SARFAESI Act in writ jurisdiction, highlighting that such actions were erroneous when statutory alternative remedies were available. It reiterates that relief under Articles 226/227 of the Constitution is generally not granted if an efficacious alternative remedy exists. The judgment emphasizes that the High Court should not allow circumvention of statutory procedures and must ensure that statutory remedies are exhausted before entertaining petitions under Article 226.

Moreover, the judgment warns against the adverse impact of granting ex parte interim orders in financial matters, stating that such actions can impede public projects and harm the financial health of institutions. It stresses that loans by financial institutions are public money given in a fiduciary capacity, and timely repayment is crucial for maintaining liquidity. The judgment cautions that the High Court should be circumspect in granting stays in matters related to recovery of dues, considering the impact on the economy.

In conclusion, the judgment dismisses the writ petition, allowing the petitioner to file an appeal against the Order-in-Original within a specified period. It reiterates the importance of following established legal principles and exhausting statutory remedies before seeking relief under Article 226, emphasizing the need for caution and adherence to legal procedures in financial matters.