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TMI Blog2016 (12) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, by availing the remedy under Section-17 of the SARFAESI Act against the measures initiated by respondent Nos.1 and 4 before the Debts Recovery Tribunal.Subject to the liberty given to the petitioners as above, the Writ Petition is dismissed. - WRIT PETITION No.1638 of 2016 - - - Dated:- 14-9-2016 - SRI C.V.NAGARJUNA REDDY AND G.SHYAM PRASAD, JJ. For The Petitioner : Mr. N.Vinesh Raj For The Respondent : Mr. Subrahmanyam Kurella ORDER: (per Honble Sri Justice C.V.Nagarjuna Reddy) Respondent No.4-Rajadhani Co-Operative Urban Bank Limited is the secured creditor of the petitioners. As the petitioners failed to repay the loan amounts, the bank has initiated arbitration proceedings. After hearing both sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st (Enforcement) Rules, 2002, on 06.01.2016. Feeling aggrieved by these proceedings, the petitioners filed the present Writ Petition for issuance of Mandamus to restrain respondent No.1 from initiating any action under the provisions of the SARFAESI Act. At the hearing, Mr. N.Vniesh Raj, learned counsel for the petitioners, strenuously contended that as per the observations of the Co-Operative Tribunal (reproduced above), a serious doubt about the liability of the petitioners is arising and that, instead of inviting a finding on the aspects raised by the Tribunal from the arbitrator, respondent Nos.1 and 4 shied away from participating in the arbitration proceedings and initiated the measures under the SARFAE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in its order, the relevant portion of which is extracted herein before, has made an observation relating to crediting and the transferring of the loan amounts from the loan account of Hyline Restaurant to the loan A/c No.CA71 standing in the name of respondent Nos.2 and 3 in this Writ Petition. The Tribunal further observed that this aspect was not examined by the Arbitrator. Even if certain views were expressed by the Tribunal on the above noted aspect, which was directed to be examined, while remanding the case to the Arbitrator, in our opinion, the same would not deter respondent Nos.1 and 4 from initiating the measures under the SARFAESI Act. It is not the pleaded case of either party that the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Equity (Thirty-first Edition, page 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application. In paragraph-66 the Supreme Court held as under: We have already analysed the scheme of both the Acts. Basically, the NPA Act is enacted to enforce the interest in the financial assets which belongs to the bank/ FI by virtue of the contract between the parties or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the debts under the Recovery of debts due to Banks and Financial Institutions Act is not a pre-condition for taking recourse to SARFAESI Act. In our opinion, the judgment in Transcore (1 supra) fully supports the plea of respondent Nos.1 and 4 that mere pendency of the arbitration proceedings would not disentitle the said respondents from recovering the amounts due under the SARFAESI Act. As regards the observations expressed by the Co- Operative Tribunal, the petitioners still have an opportunity of raising all the pleas legally available to them, including the aspect on which the Tribunal has made its observations, by availing the remedy under Section-17 of the SARFAESI Act against the measures init ..... X X X X Extracts X X X X X X X X Extracts X X X X
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