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TMI Blog2004 (3) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... or along with others. The petitioner had also executed an equitable mortgaged of the property in question in favour of respondents bank. The credit limit was enhanced up to Rs. 20 lakh, at later stage. Several other proper ties were also hypothecated to the bank in pursuance of enhanced cash credit limit. Since the defendant failed to make the repayment of loan, the respondent bank had sent the demand notice for payment of Rs. 41,23,793.33. In the event of default of payment the civil suit was filed, which was later on transferred to Debt Recovery Tribunal, Lucknow (respondent No. 1). After hearing the parties, the respondent No. 1 by the impugned judgment and order dated 12-1-2004, a copy of which has been filed as annexure No. 1 to the wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings of the suit was interrupted from time to time and prolonged on account of non-co-operation on part of the petitioner as well as respondent Nos. 2 to 5 of the present writ petition. On the other hand, learned counsel for the respondents bank submits that the alternative appellate remedy is available to the petitioner under section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 (in short hereinafter referred as Act.). For convenience sub-section (2) of section 17 is reproduced as under : ". . . 17(2). Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Civil Procedure confers jurisdiction on the Civil Court to determine a dispute of Civil nature, unless the same is barred under a statute either expressly or by necessary implication, the controversy should be adjudicated upon by the Civil Court itself not by exercising the extraordinary power by the High Court. For convenience relevant portion from the said judgment is reproduced as under : "22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory appeal cannot be bypassed for conditions like limitation, payment of court fee or deposit of some amount or fulfilment of some other conditions for entertaining the appeal. For convenience para 13 of the said judgment is reproduced as under : "13. It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself pre scribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under article 226 of Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion land the court may in exceptional cases issue a discretionar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement or contract enter into between the parties by way of mortgaged deed. 7. Against the apex court in a case in National Highway Authority of India v. Ganga Enterprises [2003] 7 SCC 410 held that the contractual matters should not be agitated in a proceedings under article 226 of Constitution of India. The relevant portion of the said judgment is reproduced as under : ". . . It is settled law that disputes relating to contracts cannot be agitated under article 226 of Constitution of India. It has been so held in the cases of Kerala SEB v. Kurien E. Kalathil, State of U.P. v. Bridge Roof Co. (India) Ltd. and Bareilly Development Authority v. Ajai Pal Singh . This is settled law. The dispute in this case was regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory remedy before filing a writ petition, Supreme Court in a case in Union of India v. Ingersoll Rand (India) Ltd. [2001] 10 SCC 617 held that the alternative statutory remedy should not be bypassed while a writ petition for the redressal of grievances. The relevant portion of the said judgment is reproduced as under : "By the impugned judgments the Karnataka High Court has allowed the writ petitions filed by the respondents and has directed the appellants to refund the amount of excise duty paid by the respondents without requiring the respondents to pursue the remedy available under the statutory provisions governing the refund of the duty paid. The matter is covered by the decision of the larger Bench of this Court in Mafa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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