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TMI Blog2017 (2) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... is available in form of Debts Recovery Tribunal where appeal would lie. In the matters involving commercial disputes, it is trite that rule of availing alternative remedy should be adhered to steadfast. The principle on this aspect is unequivocal. In Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill [ 2009 (7) TMI 765 - SUPREME COURT] , the Apex Court held that remedy by way of appeal under Section 17 is available not only upto the stage referable to Section 13(4), but even in respect of measures taken post- 13(4) stage. In the present case, the stage at which the petitioner is beset with, is such stage. The petitioner is aggrieved person for the purpose of Section 17 of the Act. In Kanaiyalal Lalchand Sachdev v. State of Maharashtra [ 2011 (2) TMI 1277 - SUPREME COURT] , the Supreme Court has stated that the measures under Section 14 constitutes the action taken after the stage of Section 13(4) and a remedy of appeal under Section 17 would be available. In that case, refusal by the High Court to entertain the writ petition was held to be fully justified. Thus, only on the ground that the petitioners have got alternative efficacious remedy, this petition is not entertaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets. By way of security, three properties, namely Residential Duplex No.4, Ground Floor; Residential Duplex No.1, Ground Floor, both at Manisha (Adipur) Owners Association, Ward No.3-A, Adipur, Taluka Gandhidham were mortgaged. The third property was bungalow comprised of Ground Floor on the Plot NO.76 in Ward No.3-B at Adipur, Taluka Gandhidham was offered. 3.1 The loan account of the petitioners was classified as non-performing asset. The respondent Bank invoked provisions of the Act and issued notice under Section 13(2) on 14th October, 2016. As per the said notice, outstanding balance towards Cash Credit Facility was ₹ 01,55,38,742.93 Ps. whereas towards Inland Letter of Credit Facility it was ₹ 02,58,60,835/-, aggregating to ₹ 04,13,95,779.93 Ps. 3.2 The petitioners replied to notice under Section 13(2) on 25th October, 2016 requesting for reconstruction or rescheduling of the debt and to find out solution. On 09th December, 2016, another reply through advocate was sent which was replied by the Bank on 15th December, 2016. Thereafter as the petitioners did not discharge their liability to pay, notices under Section 13(4) dated 05th January, 2017 was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 222 of 2015 decided on 27th January, 2016 was pressed into service for submitting that the action of holding auction was not proper. By referring to paragraph 15 of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [(1998) 8 SCC 1] it was submitted that there is no bar for the High Court to exercise powers under Article 226 of the Constitution and to entertain the writ petition directly eventhough alternative remedy may be available. 4.2 On the other hand, learned advocate for the respondent Bank at the outset submitted by placing reliance on decision on Union Bank of India Vs Satyawati Tondon [AIR 2010 SC 3413] , in particular referring to paragraphs 4, 5, 6, 12 and 17 of the judgment, that since alternative remedy is available, this Court may not entertain the petition. It was next submitted by him that the contention raised by the petitioners as to the justifiability of declaring the account as non-performing asset, requires factual investigation, even if to be entertained, and that it involve disputed question of law. He further submitted that what the petitioners described as Term Loan was not a Term Loan but in the nature of Cash Credit Advance with Renewal Facility. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available in form of Debts Recovery Tribunal where appeal would lie. In the matters involving commercial disputes, it is trite that rule of availing alternative remedy should be adhered to steadfast. The principle on this aspect is unequivocal. 6. In Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill [(2009) 8 SCC 366] , the Apex Court held that remedy by way of appeal under Section 17 is available not only upto the stage referable to Section 13(4), but even in respect of measures taken post- 13(4) stage. In the present case, the stage at which the petitioner is beset with, is such stage. The petitioner is aggrieved person for the purpose of Section 17 of the Act. 6.1 In Kanaiyalal Lalchand Sachdev v. State of Maharashtra [(2011) 2 SCC 782], the Supreme Court has stated that the measures under Section 14 constitutes the action taken after the stage of Section 13(4) and a remedy of appeal under Section 17 would be available. In that case, refusal by the High Court to entertain the writ petition was held to be fully justified. 6.2 In Satyawati Tondon (supra) the Court observed in paragraph 17 that the party must exhaust the remedy under Section 17. it was further observed, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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