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TMI Blog2011 (3) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... ner-firm transferred its business to the company M/s. Union Pesticides Private Limited. A copy of the agreement to this effect has been filed as Annexure-R/2 along with the return. Even if the pleadings of the petitioner and the arguments advanced by the learned counsel for the petitioner are accepted, then also the Board of Directors of M/s. Union Pesticides Private Limited had wrongly mortgaged the land with the bank and they are the same persons. Prima facie, it appears that they played a fraud with the bank. In such circumstances, the Board of Directors of M/s. Union Pesticides Private Limited, namely, Mr. Pratap Bhanu Sharma, Narbada Prasad Sharma, Chandra Bhanu Sharma are primarily required to be prosecuted for their criminal act. - WRIT PETITION NO.1421 OF 2011 - - - Dated:- 28-3-2011 - S.K. GANGELE AND BRIJ KISHORE DUBE, JJ Ankur Mody for the Petitioner. Sanjay Dwivedi for the Respondent. ORDER S.K. Gangele, J. - Petitioner has filed this petition against the notification of auction of some property dated 13-2-2011 issued by the bank under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the firm are also the Board of Directors of the company, hence, they are the same persons. They created an equitable mortgage in favour of the bank, hence, they cannot question the auction proceedings. It has further been contended by the respondent-bank that a case is pending before the Debt Recovery Tribunal, Jabalpur in regard to recovery of loan amount for which the auction notice has been issued, hence, the petition of the petitioner is not maintainable before this Court. 5. It is an admitted fact that the petitioner has filed this petition questioning the legality and propriety of the notice in regard to auction of the property. It is an admitted fact that the Board of Directors of the Company M/s. Union Pesticides Private Limited created an equitable mortgage in favour of the bank of the property which is being auctioned vide notice Annexure-P/1 and the case is pending before the Debt Recovery Tribunal, Jabalpur to this effect. 6. The Supreme Court in the case of United Bank of India v. Satyawati Tondon [2010] 8 SCC 110, has held as under in regard to "any person" and maintainability of writ petition under Article 226 of the Constitution of India in view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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." 48. In Titaghur Paper Mills Co. Ltd. v. State of Orissa 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 the negative by making the following observations: (SCC pp. 440-41, para 11) '11. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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.' 50. In Punjab National Bank v. O.C. Krishnan 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: (SCC p.570, paras 5-6) "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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." Hence, in our opinion, on account of pending proceedings before the Debt Recovery Tribunal, the petition filed by the petitioner is not maintainable, and it is hereby dismissed. 7. Before parting with the case, after examination of record of the case, some disturbing facts have came to the notice of the Court. As per the sale deeds filed by the petitioner as Annexures-P/4 P/5, the first sale deed dated 27-1-1975 has been executed by Pratap Bhanu Sharma and Jayant Gaur in favour of M/s. Union Pesticides Private Limited through its partners Mr. Narbada Prasad Sharma. By the aforesaid sale deed Mr. Pratap Bhanu Sharma and Jayant Gaur sold a land situated at Vidisha Mohalla Mohangiri area 100 ft. 150 ft. in a consideration of Rs. 10,000; similarly a land of area 30ft. 38 ft., a plot has been purchased by M/s. Union Pesticides Firm through its partner Mr. Narbada Prasad Sharma from Halka S/o. Madho. Another sale deed has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery Tribunal, Jabalpur in T.A.No. 149/98. In the affidavit he swore as under :- "3. I say that the defendants have filed a copy of P-II form (khasra entries) of the land bearing khasra No. 1712/2 in qusba Vidisha at Ram Nagar, whereas, the land which is mortgaged by the defendant No. 1 company is khasra No. 1712 and title documents of the same have been deposited with the applicant bank and the same have been filed along with the plaint by the bank. 4. I say that beside the khasra No. 1712, there were 14 plots which were also mortgaged in favour of the bank. The complete details of the mortgaged properties have been pleaded in para No. 14 of the plaint which has not been denied by the defendants." A copy of the affidavit has been filed as Annexure-P/8 by the petitioner. The partnership deed of the firm has also been filed by the petitioner along with the petition as Annexure-P/3. In the partnership deed names of the following partners of the firm have been mentioned :- "1.Pratap Bhanu Sharma, S/o Late Shri K.G. Sharma. 2.Narbada Prasad Sharma, S/o Shri Kishan Prasad Sharma, 3.Chandra Bhanu Sharma, S/o Late Shri K.G.Sharma, 4.Smt. Rita Gaur, W/o Shri Jayant Gaur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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