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TMI Blog2004 (4) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... writ under article 226 of the Constitution of India quashing the order passed in IA No. 655 of 2004 in OA No. 101 of 2004 on the file of Debt Recovery Tribunal, Visakhapatnam, dated 9th December, 2004 and pass such other order or orders as this Hon ble court may deem fit and proper in the circumstances of the case." 2. Notice before admission was ordered on 21st February, 2005. The respondent-bank is served. Heard the learned counsel for the petitioner and the respondent-bank. 3. The petitioners borrowed certain amounts from the Union Bank of India, and the officers of the Bank are shown as respondents 1 and 2 in the writ petition. As per the affidavit filed in support of the writ petition, an amount of Rs. 126.65 lakhs was borrowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 13 of the Act. The Supreme Court while upholding section 13 of the Act, however, laid down certain safeguards to be observed while invoking the power under section 13 of the Act. Para 80 of the judgment of the Supreme Court runs as follows: "80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under section 13(4) of the Act have been taken, a mechanism has been provided under above noted provisions are for the purpose of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: (1) Under sub-section (2) of section 13 it is incumbent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down. (5) As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, 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." 6. Further, the Supreme Court struck down section 17(2) of the Act which required the person, intending to avail the right of appeal created under section 17(1) of the Act against any decision taken under section 13(4) of the Act, to deposit 75 per cent of the amount claimed by the creditor. As a matter of fact, it is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the loan account of the bank on or before 22nd February, 2005 with a default clause. Hence, the present writ petition. 8. The learned senior counsel Mr. K. Subramanya Reddy appearing for the petitioners argued that the imposition of a condition like the one imposed by the impugned order would be inconsistent with the right that is asserted by the petitioners and it also tantamount to irrational exercise of the discretion vested in the Tribunal. 9. The learned senior counsel further argued that while the main issue in the appeal as well as in the interlocutory application is the legality and the jurisdiction of the respondent-bank to take possession of the land in dispute, and on the face of the assertion of the petitioners that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of appeal available against the impugned order, and, therefore, the interference of this court in exercise of its extraordinary jurisdiction under article 226 of the Constitution is not warranted. 13. The argument of the learned counsel for the respondent-bank as to the availability of an alternative remedy of statutory appeal is required to be dealt with first. 14. It is a settled principle of law that the existence of an alternative remedy is not a bar for exercise of jurisdiction under article 226 of the Constitution of India, but it is only one of the relevant considerations, which should guide the Court while exercising jurisdiction under article 226 of the Constitution. In a case like the one before us, where the question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under section 13(4)( a ) of the Act must necessarily be interpreted as an asset other than agricultural land. The question, of course, whether the land in question is an agricultural land or not, requires to be decided on the basis of appropriate evidence to be led in the appeal. But, at the stage of considering the interlocutory applications, the Tribunal, while deciding the question whether the creditor can be permitted to take possession of agricultural land or not, cannot totally ignore the plea of the debtor that the land is an agricultural land and impose a condition such as the one imposed in the impugned order. In our view, such a condition tantamounts to placing a premium on the constitutional right of the petitioners under art ..... X X X X Extracts X X X X X X X X Extracts X X X X
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