# Kasturi Devi Sheetalaya Pvt. Ltd. & Anr v. The Presiding Officer Debt Recovery Tribunal & Anr. Opp. Parties

- **Citation:** (2024) 5 ILRA 1209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-28
- **Case number:** Writ-C No. 18388 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kasturi-devi-sheetalaya-pvt-ltd-anr-v-the-presiding-officer-debt-recovery-52023
- **Pages:** 6

## Headnote

A. Civil Law - SARFAESI Act, 2002 - Section
18 - Appeal to Appellate Tribunal - Scope -
Any order made by the Debt Recovery
Tribunal
(DRT)
on
a
miscellaneous
application under Section 17 of the
SARFAESI Act, 2002, is appealable under
Section 18 - Section 17 does not impose a
condition that the order must be final - The
term "order" includes interlocutory orders,
such as those rejecting a miscellaneous
application - The Act authorizes the
Tribunal
to
adjudicate
miscellaneous
applications, and any order passed on such
an application, even if interlocutory, is
considered an order under Section 17 and
is amenable to appeal. (Para 9, 10)

B. SARFAESI Act, 2002 - Section 18 - Order
passed on Miscellaneous Application - If a
borrower moves an application asserting
that an earlier securitization application
was filed but, since the bank withdrew its
proceedings and subsequently issued a
fresh notice, the court fee already paid
should be adjusted, such an application
qualifies as a miscellaneous application -
An objection raised by the Registrar of the
Tribunal regarding the maintainability of
the securitization application, and any
order passed by the DRT on such a
miscellaneous application, is considered an
order under Section 17 of the SARFAESI
Act, 2002, and is amenable to appeal - An
order regarding court fees is appealable
before
the
Appellate
Tribunal
under
Section 18 of the Act. (Para 8, 10)

C. Civil Law - Constitution of India, 1950 -
Art. 226 - A writ petition against an order
passed by the Debt Recovery Tribunal
(DRT) on a miscellaneous application is not
maintainable due to the availability of an
alternative remedy u/ s 18 of SARFAESI
Act, 2002 (Para 11)

Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Kasturi Devi Sheetalaya Pvt. Ltd. & Anr. Vs. The Presiding Officer Debt Recovery
 Tribunal & Anr.
1209
2.11.2000. The petitioner brought
on record the High School pass Certificates
of his three daughters and three sons.
However, the Prescribed Authority and the
Appellate Authority refused to grant benefit
of additional land for each member of the
family in addition to the five members as the
petitioner did not produce relevant extract
of the Family Register and on 8.6.1973 none
of the petitioner's children was born. The
logic applied by the Prescribed Authority
and
the
Appellate
Authority
is
incomprehensible.
According
to
the
respondents, the date of determination of
family members has been taken as 8th June
1973, but the date of determination of
ceiling area has been taken as the date when
the Prescribed Authority was deciding the
case.
39. In my considered opinion even
though the petitioner's family consisted of
only two members i.e. himself and his wife
on 8th June 1973, at the time of issuance of
notice under Section 9, on 2.11.2000, all of
his six children had been born. Three of his
daughters were married but there were at
least three sons who were living with him.
None of them has been shown to be an
independent tenure holder having more than
2 hectares of land by the State respondents,
in their Counter-affidavit. For the purpose
of determination of ceiling area the
petitioner was entitled to 2 additional
hectares for at least one of his sons namely
Shyam Srivastava who was major at the
time.
40. Though this Court is not
convinced with the argument of the learned
counsel for the petitioner regarding the
applicability of the cut-off date of 8.6.1973
for determining ceiling area on the basis of
Section 29 of the Act and holds that the
petitioner was independent tenure holder of
eight plots of land ad-measuring 8.546
hectares
in
villages
Magrapur
and
Baddupur in Tehsil Shahbad District Hardoi
which in irrigated terms came out to be
7.968 hectares; the failure of the learned
Court below to take into account the number
of members of the petitioner's family while
determining the permissible limit of land to
be left with the petitioner cannot be
countenanced.

19. In such view of the fact, the
reason assigned by the appellate authority
that the number of family members is to be
seen on the date of introduction of the
amending act and not on the date of notice
under Section 10 (2) of the Act, 1960 is
erroneous and cannot be sustained in law,
and is accordingly set aside.

20. Thus, for the reasons given
above, the order dated 23.11.1983 passed by
the Prescribed Authority (Ceiling), Tehsil
Puwaya, District Shahjahanpur and the
order dated 16.01.1984 passed by the
Additional District Judge, Shahjahanpur are
hereby set aside.

21. Consequently, the writ petition
is allowed with no order as to costs.
----------
(2024) 5 ILRA 1209
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 18388 of 2024

Kasturi Devi Sheetalaya Pvt. Ltd. & Anr.
 ...Petitioners
Versus
The
Presiding
Officer
Debt
Recovery
Tribunal & Anr. ...Opp. Parties

Counsel for the Petitioners:
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashok Pandey, Srestha Pandey

Counsel for the Opp. Parties:
Eshita Sand

A. Civil Law - SARFAESI Act, 2002 - Section
18 - Appeal to Appellate Tribunal - Scope -
Any order made by the Debt Recovery
Tribunal
(DRT)
on
a
miscellaneous
application under Section 17 of the
SARFAESI Act, 2002, is appealable under
Section 18 - Section 17 does not impose a
condition that the order must be final - The
term "order" includes interlocutory orders,
such as those rejecting a miscellaneous
application - The Act authorizes the
Tribunal
to
adjudicate
miscellaneous
applications, and any order passed on such
an application, even if interlocutory, is
considered an order under Section 17 and
is amenable to appeal. (Para 9, 10)

B. SARFAESI Act, 2002 - Section 18 - Order
passed on Miscellaneous Application - If a
borrower moves an application asserting
that an earlier securitization application
was filed but, since the bank withdrew its
proceedings and subsequently issued a
fresh notice, the court fee already paid
should be adjusted, such an application
qualifies as a miscellaneous application -
An objection raised by the Registrar of the
Tribunal regarding the maintainability of
the securitization application, and any
order passed by the DRT on such a
miscellaneous application, is considered an
order under Section 17 of the SARFAESI
Act, 2002, and is amenable to appeal - An
order regarding court fees is appealable
before
the
Appellate
Tribunal
under
Section 18 of the Act. (Para 8, 10)

C. Civil Law - Constitution of India, 1950 -
Art. 226 - A writ petition against an order
passed by the Debt Recovery Tribunal
(DRT) on a miscellaneous application is not
maintainable due to the availability of an
alternative remedy u/ s 18 of SARFAESI
Act, 2002 (Para 11)

Dismissed. (E-5)

List of Cases cited:
1. PHR Invent Educational Society Vs UCO Bank
& ors. (Civil Appeal No.- 4845 of 2024) dt
10.04.2024
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ashok Pandey, learned
counsel for the petitioners and Sri Alok Rai
and Ms. Eshita Sand, learned counsel for the
contesting respondent bank.

2. The petitioners have invoked the
extraordinary jurisdiction of this Court
under Article 226 of the Constitution,
seeking challenge to the order passed by the
Debt
Recovery
Tribunal
upon
a
miscellaneous application bearing No.- 40
of 2024 (Kasturi Devi Sheetalaya Pvt. Ltd.
v.
Bank
of
India)
arising
out
of
Securitization Application No.- 461 of 2022.

3. A preliminary objection has been
raised by learned counsel for the contesting
respondent- bank that the petitioner has an
alternative efficacious remedy to prefer an
appeal before the Debt Recovery Appellate
Tribunal under Section 18 of Securitization and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(hereinafter referred to as 'SARFAESI Act,
2002') and this Court, therefore, may not
interfere invoking extraordinary jurisdiction of
this Court under Article 226 of the Constitution.

4. Learned counsel for the respondent
has further relied upon a recent judgment of
Supreme Court in the case of PHR Invent
Educational Society v. UCO Bank and
others (Civil Appeal No.- 4845 of 2024)
decided on 10th April, 2024 in which Supreme
Court has held that the High Court should not
interfere in matters arising out of SARFAESI
Act, 2002 when the Legislature has prescribed
for special forum for the parties to exhaust
remedy therein.
5 All. Kasturi Devi Sheetalaya Pvt. Ltd. & Anr. Vs. The Presiding Officer Debt Recovery
 Tribunal & Anr.
1211
5.

Meeting
the
preliminary
objections, learned counsel for the petitioner
submits that Section 18 of SARFAESI Act,
2002, as it stood originally came to be
amended by amending Act No.- 30 of 2004
putting a rider that an appeal would lie
against an order passed under Section 17 of
the SARFAESI Act, 2002. He submits that
an
order
passed
on
miscellaneous
application regarding the court fee would
not amount to an order passed under Section
17 of SARFAESI Act, 2002. He would
submit that the provisions as contained
under Section 17 of the SARFAESI Act,
2002, lays down a detailed procedure
regarding recovery of the secured debts and
it is after putting aggrieved person to notice
and inviting objections under Sections 13(4)
that recourse is taken to recover the secured
assets by coercive measures. Section 17 of
the SARFAESI Act, 2002 prescribed power
of the Debt Recovery Tribunal to entertain
an application filed at the instance of
borrower or defaulter against the measures
taken by the bank to secure debts under
Section 13. Section 17 (1), (2), (3), (5) and
(7) as are relevant for the purpose of the case
are reproduced hereunder:

"17. Application against measures
to recover secured debts.-(1) Any person
(including borrower), aggrieved by any of
the measures referred to in sub-section (4) of
section 13 taken by the secured creditor or
his
authorized
officer
under
this
Chapter,1[may make an application along
with such fee, as may be prescribed, to the
Debts Recovery Tribunal having jurisdiction
in the matter within forty five days from the
date on which such measure had been taken:
Provided that different fees may be
prescribed for making the application by the
borrower and the person other than the
borrower.
Explanation.-For the removal of
doubts, it is hereby declared that the
communication of the reasons to the
borrower by the secured creditor for not
having accepted his representation or
objection or the likely action of the secured
creditor at the stage of communication of
reasons to the borrower shall not entitle the
person (including borrower) to make an
application to the Debts Recovery Tribunal
under this sub-section (1) of section 17.)
(1A) An application under subsection (1) shall be filed before the Debts
Recovery Tribunal within the local limits of
whose jurisdiction-
(a) the cause of action, wholly or in
part, arises;
(b) where the secured asset is
located; or
(c) the branch or any other office of
a bank or financial institution is maintaining
an account in which debt claimed is
outstanding for the time being.
(2) The Debts Recovery Tribunal
shall consider whether any of the measures
referred to in sub-section (4) of section 13
taken
by
the
secured
creditor
for
enforcement of security are in accordance
with the provisions of this Act and the rules
made thereunder.
(3) If, the Debts Recovery Tribunal,
after examining the facts and circumstances
of the case and evidence produced by the
parties, comes to the conclusion that any of
the measures referred to in sub-section (4) of
section 13, taken by the secured creditor are
not in accordance with the provisions of this
Act and the rules made thereunder, and
require restoration of the management or
restoration of possession, of the secured
assets to the borrower or other aggrieved
person, it may, by order,-
(a) declare the recourse to any one
or more measures referred to in sub-section
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
(4) of section 13 taken by the secured
creditor as invalid; and
(b) restore the possession of secured
assets or management of secured assets to
the borrower or such other aggrieved
person, who has made an application under
sub-section (1), as the case may be; and
(c) pass such other direction as it
may consider appropriate and necessary in
relation to any of the recourse taken by the
secured creditor under sub-section (4) of
section 13.
(4)...
(5) Any application made under
sub-section (1) shall be dealt with by the
Debts Recovery Tribunal as expeditiously as
possible and disposed of within sixty days
from the date of such application: Provided
that the Debts Recovery Tribunal may, from
time to time, extend the said period for
reasons to be recorded in writing, so,
however, that the total period of pendency of
the application with the Debts Recovery
Tribunal, shall not exceed four months from
the date of making of such application made
under sub-section (1).
(6) ...
(7) Save as otherwise provided in
this Act, the Debts Recovery Tribunal shall,
as far as may be, dispose of the application
in accordance with the provisions of the
Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (51 of 1993)
and the rules made thereunder."

6. From a bare reading of the
aforesaid provisions it is clear that an
application by a aggrieved person including
the borrower may be made to the Tribunal
for appropriate relief against the measures
taken by the bank to recover the secured
debts. The very power to entertain an
application, therefore, would entail power to
entertain any miscellaneous application as
well because under Section 1(a) as quoted
above gives power to the Tribunal to look
into the cause of action wholly or in part. So
in order to maintain an application as a
competent application the Tribunal vested
with power to look into all sorts of
objections that may be raised either by the
applicant or by the bank. This substantive
provision has been given under Section 47
which includes the right to hear the
miscellaneous application as well and any
order
passed
on
such
miscellaneous
application would, therefore, amount to an
order passed under Section 17, may be
interlocutory in nature. Rule 13 (1) of the
Security Interest (Enforcement) Rules Act,
2002 is also worth mentioning here. Rule 13
of the Security Interest (Enforcement) Rules
Act, 2002 is reproduced hereunder:

"13. Fees for applications and
appeals under sections 17 and 18 of the
Act.- (1) Every application under subsection (1) of section 17 the Appellate
Tribunal under sub-section or an appeal to
(1) of section 18 shall be accompanied by a
fee provided in the sub-rule (2) and such fee
may be remitted through a crossed demand
draft drawn on a bank or Indian Postal
Order in favour of the Registrar of the
Tribunal or the Court as the case may be,
payable at the place where the Tribunal or
the Court is situated."

7. Thus, for an application to be a
competent application under Section 17 of
SARFAESI Act, 2002 and an appeal to be
competent under Section 18 of SARFAESI
Act, 2002. It is provided to be accompanied
by the requisite court fee as given under
Sub-Rule 2 which is a chart provided
therein.

8. If the borrower makes an
application
that
earlier
securitization
application was moved but since the bank
5 All. Kasturi Devi Sheetalaya Pvt. Ltd. & Anr. Vs. The Presiding Officer Debt Recovery
 Tribunal & Anr.
1213
withdrew its proceedings to recover the
secured debts at that stage and subsequently
issued a fresh notice and hence the court fee
already
paid
should
be
taken
into
consideration,
would
amount
to
a
miscellaneous
application.
Putting
an
objection by the Registrar of Tribunal upon
the maintainability of the securitization
application and any order passed thereupon
by the Debt Recovery Tribunal upon any
miscellaneous application shall be taken to
be an order within the meaning of Section 17
of SARFAESI Act, 2002 read with Rule 13
of the Rules quoted above. Section 18 of the
SARFAESI Act, 2002 is also reproduced
hereunder:

"18.
Appeal
to
Appellate
Tribunal.-(1) Any person aggrieved, by
any order made by the Debts Recovery
Tribunal under section 17, may prefer an
appeal along with such fee, as may be
prescribed to an Appellate Tribunal within
thirty days from the date of receipt of the
order of Debts Recovery Tribunal.
Provided that different fees may be
prescribed for filing an appeal by the
borrower or by the person other than the
borrower:
Provided further that no appeal
shall be entertained unless the borrower has
deposited with the Appellate Tribunal fifty
per cent. of the amount of debt due from him,
as claimed by the secured creditors
or
determined
by
the
Debts
Recovery Tribunal, whichever is less:
Provided also that the Appellate
Tribunal may, for the reasons to be recorded
in writing, reduce the amount to not less
than twenty-five per cent. of debt referred to
in the second proviso.]
(2) Save as otherwise provided in
this Act, the Appellate Tribunal shall, as far
as may be, dispose of the appeal in
accordance with the provisions of the
Recovery of Debts Due to Banks and
Financial Institutions Act, 1993 (51 of 1993)
and rules made thereunder."

9. From bare reading of the
aforesaid provisions it is true that it comes
out very clearly that any order made by Debt
Recovery Tribunal is appealable but of
course
passed
under
Section 17
of
SARFAESI Act, 2002. The section does not
prescribe or put a rider that order should be
a final order.

10. Thus, every order would include
even
interlocutory
order
rejecting
a
miscellaneous application. Hence the order
passed by the Debt Recovery Tribunal upon
the miscellaneous application filed by the
petitioner impugned herein this petition is
amenable to the appellate forum prescribed
under Section 18 of the SARFAESI Act,
2002.

11. Besides above, in a recent
judgment cited before this Court, Supreme
Court has very categorically held that High
Court should refrain from entertaining
petitions invoking powers under Article 226
of the Constitution when in the special Act
like Recovery of Debts and Bankruptcy Act,
1993 Act and SARFAESI Act, 2002
prescribed for statutory remedies. These
being the special act, therefore, the parties
should be left to invoke remedy provided
therein first. Though the Supreme Court has
held that there are certain exceptions
enumerated in paragraph 29 of the
judgment, in which power can be invoked
under Article 226 of the Constitution but
where the action has been taken or the order
has been passed, in compliance of the
provisions of natural justice and the case
does not fall under the exceptional clauses,
the High Court should refrain from
entertaining such petitions. Vide paragraphs
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
29, 30, 31, 32 & 33 of the judgment the
Supreme Court held held thus:

"29. It could thus clearly be seen that
the Court has carved out certain exceptions
when a petition under Article 226 of the
Constitution could be entertained in spite of
availability of an alternative remedy. Some of
them are thus:
(i) where the statutory authority has
not acted in accordance with the provisions of
the enactment in question;
(ii) it has acted in defiance of the
fundamental principles of judicial procedure;
(iii) it has resorted to invoke the
provisions which are repealed; and
(iv) when an order has been passed in
total violation of the principles of natural
justice.
30. It has however been clarified that
the High Court will not entertain a petition under
Article 226 of the Constitution if an effective
alternative remedy is available to the aggrieved
person or the statute under which the action
complained of has been taken itself contains a
mechanism for redressal of grievance.
31. Undisputedly, the present case
would not come under any of the exceptions as
carved out by this Court in the case of Chhabil
Dass Agarwal (supra).
32. We are therefore of the considered
view that the High Court has grossly erred in
entertaining and allowing the petition under
Article 226 of the Constitution.
33. While dismissing the writ petition,
we will have to remind the High Courts of the
following words of this Court in the case of
Satyawati Tondon (supra) since we have come
across various matters wherein the High Courts
have been entertaining petitions arising out of
the DRT Act and the SARFAESI Act in spite of
availability of an effective alternative remedy:
"55. It is a matter of serious concern
that despite repeated pronouncement of this
Court, the High Courts continue to ignore the
availability of statutory remedies under the DRT
Act and the SARFAESI Act and exercise
jurisdiction under Article 226 for passing orders
which 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."
(Emphasis added)

12. The case in hand also does not
fall in the exception clauses.

13. In view of the above,
preliminary objection raised by the learned
counsel for the contesting respondent - bank
is upheld.

14. The petition thus lacks merit
and is, accordingly dismissed on the ground
of alternative remedy.

15. Liberty rests with the petitioner
to avail the alternative remedy, if so advised.

16. Subject to the aforesaid liberty,
this petition is dismissed and is, accordingly,
consigned to records.
----------
(2024) 5 ILRA 1214
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-C No. 27653 of 2023

Shahnawaj Ali ...Petitioner
Versus
Election Tribunal D.J. Muzaffarnagar & Ors.
 ...Opp. Parties

Counsel for the Petitioner: