# M/S K.C. International Situate & Ors v. Indian Bank Kanpur Main Branch 280 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 4 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-15
- **Case number:** Writ C No. 263 of 2025
- **Bench:** Shekhar B. Saraf, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-k-c-international-situate-ors-v-indian-bank-kanpur-main-branch-280-indian-53114
- **Pages:** 7

## Headnote

Civil Law -Constitution of India,1950Article
226-SARFAESI
Act,2002Sections 13(3A), 13(4) and 13(8)-The
petitioners challenged the action of
the respondent-bank u/s13(4) of the
Act,2002-their
objection
dated
05.10.2024
u/s
13(3A)
was
not
decided or served before the bank
proceeded u/s 13(4)-Held, The bank
had passed a reasoned order on the
petitioners'
representation
and
attempted service through post, which
failed due to reasons beyond the bank
control
("door
always
locked:,
incorrect pincode)-Notice u/s 13(4)
was received by the petitioners and
they had already filed proceedings
before DRT-Reliance was placed on
United bank of India Vs. Satyawati
Tondon
to
hold
that
the
writ
jurisdiction under Article 226 should
not
be
invoked
where
effective
alternative remedy exists-no case of
mala fide or patent illegality was made
out.(Para 1 to 17)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

4 All. M/S K. C. International Situate and Ors. Vs. Indian Bank Kanpur Main Branch
279
terminal dues as may be admissible
to the regular government employees,"

28. In case of State of Gujarat & Ors.
versus Talsibhai Dhanjibhai Patel reported in
2022 LiveLaw (SC) 187. It has been held that
once State has continued to take service from an
employee even on an ad hoc basis for 30 years,
State cannot be permitted to take benefit of its
own wrong and no error. was found in
judgment of High Court directing payment of
pensionary benefit to the employee who retired
after rendering more than 30 years of service as
ad hoc without regularization.

29. Similarly, in another case of
Yashwant Hari Katakkar v. Union of India
and ors. reported in 1996 (7) SCC 113, it was
held that an employee who has served more
than 20 years is entitled to pension and denial of
retiring pension to the petitioner on the ground
of not being permanent on any post clearly is
violative of Clause (e) of Fundamental Rules,
56. The department cannot keep a person
temporary or on daily wages indefinitely.
Simiarly, in another case of A.P. Srivastava v.
Union of India and Ors. reported in (1995) 3
UPLBEC 1842 (Supplement), the Supreme
Court has clearly taken a view that in case of a
temporary employee who has rendered 20 years
of service is entitled to pension.

30. In view of aforesaid judgments, it
is clear that ad hoc/ temporary/ daily wage
employees rendering long years of service and
were permitted to superannuate without
regularization/confirmation
in
service
are
entitled to post retiral benefits. In this view of
the matter, the Court is of the opinion that since
the petitioner had rendered continuous service
for decades, it creates a legitimate expectation
for proper service benefits.

31. In the present case, the petitioner
worked continuously for 27 years until
superannuation. The University treated him as a
regular employee for all practical purposes,
providing him with all service benefits during
his tenure. To deny him post-retirement benefits
merely because he was not formally confirmed
would be unjust and contrary to the principles
established by the Hon'ble Supreme Court and
this Court.

32. In view of the aforesaid, the Court
is of the opinion that the order dated 27.07.1993
passed by the Section Officer on behalf of the
Principal, S.T. High School, A.M.U. Aligarh,
and the order dated 04.02.2019 passed by the
Assistant Registrar (Administration-NT) are
liable to be set aside and hereby set aside. The
petitioner is entitled to get the all post retiral
benefits, hence the respondents are directed to
treat the entire service period of the petitioner
from 27.02.1991 to 31.03.2018 as qualifying
service for the purpose of determining all postretirement benefits and also directed to calculate
and release all post-retirement benefits to the
petitioner within a period of three months from
the date of communication of this order.

33. With the aforesaid observations,
the present writ petition is allowed. No order as
to costs.
----------
(2025) 4 ILRA 279
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2025
BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 263 of 2025

M/S K.C. International Situate & Ors.
 ...Petitioners
Versus
Indian Bank Kanpur Main Branch
 ...Respondent
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Prerna
Surolia,
Ravi
Kant
Surolia,
Shashi Kant Shukla

Counsel for the Respondent:
A.S.G.I., Anuj Srivastava

Civil Law -Constitution of India,1950Article
226-SARFAESI
Act,2002Sections 13(3A), 13(4) and 13(8)-The
petitioners challenged the action of
the respondent-bank u/s13(4) of the
Act,2002-their
objection
dated
05.10.2024
u/s
13(3A)
was
not
decided or served before the bank
proceeded u/s 13(4)-Held, The bank
had passed a reasoned order on the
petitioners'
representation
and
attempted service through post, which
failed due to reasons beyond the bank
control
("door
always
locked:,
incorrect pincode)-Notice u/s 13(4)
was received by the petitioners and
they had already filed proceedings
before DRT-Reliance was placed on
United bank of India Vs. Satyawati
Tondon
to
hold
that
the
writ
jurisdiction under Article 226 should
not
be
invoked
where
effective
alternative remedy exists-no case of
mala fide or patent illegality was made
out.(Para 1 to 17)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Malhotra Tractors Vs S.B.I. (2010) 1 BC
176

2. Krishna Chandra Sahoo Vs B.O.I.l (2009)2 BC
635

3. Mardia Chemicals Vs U.O.I. (2004) 3 SCC 311

4. United Bank of India VS Satyawati Tondon &
ors.(2010) 8 SCC 110

(Delivered by Hon'ble Shekhar B. Saraf, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J. )

1. Counter affidavit and rejoinder
affidavit to counter affidavit have been
filed, which are taken on record.

2. Heard Ms. Prerna Surolia,
learned counsel appearing on behalf of
petitioners, Sri Vivek Kumar Singh,
learned counsel appearing on behalf of
respondent No.2 and Sri Kush Saxsena,
learned counsel assisted by Sri Anuj
Srivastava, learned counsel appearing on
behalf of Bank of India and perused the
record.

3. This is a writ petition under
Article 226 of the Constitution of India
wherein the writ petitioner has made the
following prayer:-

 i)- to issue writ, order or
direction in the nature of mandamus
commanding the respondent bank to decide
the representation/objection dt. 05.10.2024
of the petitioner (Annexure 1 to the writ
petition) by a reasoned order, in terms of
Section 13(3A) of the Act, in view of the
settled judicial precedent by the Hon'ble
Apex court in the case of Madia Chemicals
(supra);
 ii)- to set aside proceedings
initiated by the respondent bank under
Section 13(4) of the Act in contravention
to the non-compliance o the provisions
of Section 13(3A) of the Act as well as in
defiance of settled judicial precedent of
the Hon'ble Apex Court in the case of
Madia Chemicals (supra);

iii)- to issue writ, order or
direction in the nature of prohibition
restraining the respondent bank from
initiating further proceedings in terms of
provisions of Section 13(4) of the Act in
view of the settled judicial precedent of
the Hon'ble Apex Court in the case of
Madia Chemicals (supra);
4 All. M/S K. C. International Situate and Ors. Vs. Indian Bank Kanpur Main Branch
281
4. The main contention of the
petitioners, as argued by Ms. Prerna
Surolia, counsel appearing on behalf of
petitioners
is
that
the
representation/objection dated October 5,
2024 made by the petitioners under Section
13(3A)
of
the
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(hereinafter referred to 'the SARFAESI
Act') was not decided by the bank before
proceeding under Sections 13(4) and 13(8)
of the SARFAESI Act. The ancillary prayer
is also with regard to setting aside the
proceedings initiated by the respondentbank
under
Section
13(4)
of
the
SARFAESI Act.

5. The facts that emerged from the
perusal of the documents and after hearing
learned counsel appearing on behalf of
parties are as follows:-

a)- The representation/objection
dated October 5, 2024 of the petitioners
was decided by the bank authorities by an
order dated October 17, 2024 and the said
order was dispatched for delivery to the
petitioner No.1 and to the other petitioners.

b)- Petitioners have submitted
that this order was never received by any of
the petitioners. Documents have been
placed by both the parties to indicate that
though service was attempted by the postal
authorities, however, the attempt upon the
petitioner nos. 2 and 3 was unsuccessful as
the door of the residence of the petitioner
nos. 2 and 3 were shut, and therefore, the
said letter came back without service. With
regard to the petitioner no.1, it appears that
proper service may not have been made.

c)- Notice under Section 13(4) of
the Act dated November 27, 2024 was
issued upon the petitioners which was
received by them.
 d)- The petitioners approached
the Debts Recovery Tribunal on December
13, 2024 and filed S.A. No.- 1087 of 2024.

e)- Subsequently, on January 02,
2025 the present writ petition was filed,
and on January 08, 2025 the matter was
taken up by this Court wherein a
supplementary affidavit was filed by the
petitioners in which for the first time the
petitioners submitted that a S.A. application
has been filed before the Debts Recovery
Tribunal challenging the Section 13(4)
notice. It is further noted that on that date a
copy of the order dated October 17, 2024
passed under Section 13(3A) was handed
over to counsel appearing on behalf of
petitioners. Subsequent to January 08,
2025, the matter has been listed on several
occasions wherein affidavits, in the nature
of counter affidavit, short-counter affidavit
and rejoinder affidavit have been filed by
the parties.

6. The arguments of the petitioners
are simple that without the petitioners
having received the order dated October 17,
2024, the bank could not have proceeded
under Section 13(4) of the SARFAESI Act.
Counsel appearing on behalf of petitioners
relied on the judgements in the cases of
Malhotra Tractors Vs. State Bank of India
reported in (2010) 1 BC 176, Krishna
Chandra Sahoo Vs. Bank of India
reported in 2009 (2) BC 635 and Mardia
Chemicals Vs. Union of India reported in
(2004) 3 SCC 311 passed by Allahabad
High Court, Orissa High Court and Hon'ble
Supreme Court, respectively, to buttress her
argument that the provisions of Section
13(3A) are mandatory in nature and the
bank
is
required
to
decide
the
objections/representations of the petitioners
before proceeding further under Section
13(4) of the SARFAESI Act. From the
judgements cited by the counsel appearing
282 INDIAN LAW REPORTS ALLAHABAD SERIES
on behalf of petitioners, the following
principles are culled out :-

 (a)- Unless and until the exercise
under Section 13(3A) is completed, the
bank is not authorized to proceed further
and take any measures under Section 13(4)
of the Act.

(b)- It is obligatory on the part of
the authority first to consider and dispose
of the objection by speaking and reasoned
order and thereafter communicate the order
to the concerned. This is a condition
precedent for issuance of notice under
Section 13(4) of the Act.

(c)- The authority cannot ignore
the statutory provisions treating them
merely to be decoration pieces in the
statutes rather they are required to adhere to
the same strictly.

7. Counsel appearing on behalf of
the petitioner further submits that since it is
clear that the service of the order dated
October 17, 2024 was not completed upon
the petitioners, the actions taken under the
13(4) of the Act are to be treated as null
and void.

8. Per contra, counsel appearing on
behalf of respondent bank submits that the
bank has followed the procedure in toto.
They have passed a reasoned order in
relation to objection filed by the petitioners
vide order dated October 17, 2024.
Subsequently, the documents clearly show
that the service was attempted on all the
three petitioners, and the consignment sent
to the residential address of the petitioner
no.2 and 3 were returned with the postal
remark " दररर्ाप्त ककर्ा भलखखत पते पर
गथत के दौरान अननजश्चत काल के भलर्े
ताला बन्द रहता है अतः Left Sd.
18.10.2024" With regard to the service on
the petitioner no.1, it appears that a wrong
postal pin code was given and therefore
service could not be completed. However,
it is surprising that notice under Section
13(4) of the SARFAESI Act was served
and received by the petitioner nos. 2 and 3
at the same address to which notice was
attempted to be served for the order dated
October 17, 2024. This fact of service is
also controverted by learned counsel for the
petitioners who submits that the notice
under Section 13(4) of the SARFAESI Act
was obtained by the petitioners after having
personally gone to the bank. The above fact
is not proved, in any manner, by learned
counsel for the petitioners.

9. Firstly, we are not joining issue
with the principles culled out by the High
Court of Orrissa, High Court of Allahabad
and Hon'ble Supreme Court in the
judgements cited above. We are consensus
ad idem with the views enunciated in those
judgements. However, the facts of this
particular case are slightly different. Firstly,
the objection raised by the petitioners was
undisputedly dealt with by the bank by the
order dated October 17, 2024. Furthermore,
undisputedly the said order was sent by
post to the petitioners. This is not a case of
an order being passed and simply being put
in the drawer of the person passing the said
order. This is a case where the bank duly
tried to serve the order to the petitioners.
Subsequently, we see that when the notice
under Section 13(4) was issued on
November 17, 2024, the same was received
by the petitioners and the petitioners
challenged the same by way of an S.A.
before the Debts Recovery Tribunal on
December 13, 2024. In the said challenge,
at paragraph 19 of the S.A. application, the
petitioners have stated that the provisions
of Section 13(3)A of the SARFAESI Act
were not complied with and in the grounds
4 All. M/S K. C. International Situate and Ors. Vs. Indian Bank Kanpur Main Branch
283
the petitioners have further challenged that
the bank has not followed the mandatory
provisions of law. We further find that
when the writ petition was filed on January
02, 2025, there was no mention of the S.A.
application having been filed by the
petitioners. It is only on January 8, 2025,
when the matter was taken up, that the said
fact was brought on record by the
petitioners. On that date a copy of the
order dated October 17, 2024 was also
handed over to counsel appearing on
behalf of petitioners. Subsequent to the
same, the matter is continuing before
the Debts Recovery Tribunal and the
petitioners are challenging the actions
of the bank authorities.

10. The challenge before this
Court is only with regard to whether the
bank acted correctly by proceeding with
the Section 13(4) of the SARFAESI Act
when proper service of the order under
Section 13(3A) was not executed by the
bank.

11. In our view, the factum of
passing of the order under Section
13(3A) of the SARFAESI Act and the
attempt to carry out service of the same
on the petitioners coupled with the fact
that the Section 13(4) notice was
received by the petitioners leads us to
the conclusion that the petitioners have
missed the bus. Having now challenged the
Section 13(4) notice before the Debts
Recovery Tribunal, the petitioners cannot
be allowed to sail on two boats at the same
time by raising the earlier proceedings
under Section 13(3A) of the SARFAESI
Act before this Court. It is also to be noted
that the petitioners have also taken the
ground with regard to Section 13(3A) in the
S.A. application before the Debts Recovery
Tribunal.
12. Keeping in view the judgement
of Hon'ble Supreme Court in the case of
United Bank Of India vs Satyawati
Tondon & Ors reported in 2010 (8) SCC
110 at paragraph nos. 45, 46 and 47, which
are delineated below:-

 "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 of such bodies/institutions, which
(sic will) ultimately prove detrimental to
the economy of the nation. Therefore, the
High Court should be extremely careful
and circumspect in exercising its discretion
to grant stay in such matters. Of course, if
the petitioner is able to show that its case
falls within any of the exceptions carved
out
in
Baburam
Prakash
Chandra
Maheshwari v. Antarim Zila Parishad [AIR
1969 SC 556] , Whirlpool Corpn. v.
Registrar of Trade Marks [(1998) 8 SCC 1]
and Harbanslal Sahnia v. Indian Oil
Corpn. Ltd. [(2003) 2 SCC 107] and some
284 INDIAN LAW REPORTS ALLAHABAD SERIES
other judgments, then the High Court may,
after
considering
all
the
relevant
parameters and public interest, pass an
appropriate interim order.

47. In Thansingh Nathmal v.
Supdt. of Taxes [AIR 1964 SC 1419 :
(1964) 6 SCR 654] the Constitution Bench
considered the question whether the High
Court of Assam should have entertained the
writ petition filed by the appellant under
Article 226 of the Constitution questioning
the order passed by the Commissioner of
Taxes under the Assam Sales Tax Act,
1947. While dismissing the appeal, the
Court observed as under: (SCC p. 1423,
para 7)

"7. The jurisdiction of the High
Court under Article 226 of the Constitution
is couched in wide terms and the exercise
thereof is not subject to any restrictions
except the territorial restrictions which are
expressly provided in the articles. But the
exercise of the jurisdiction is discretionary:
it is not exercised merely because it is
lawful to do so. The very amplitude of the
jurisdiction demands that it will ordinarily
be exercised subject to certain self-imposed
limitations. Resort to that jurisdiction is not
intended as an alternative remedy for relief
which may be obtained in a suit or other
mode prescribed by statute. Ordinarily the
Court will not entertain a petition for a writ
under Article 226, where the petitioner has
an alternative remedy, which without being
unduly onerous, provides an equally
efficacious remedy. Again the High Court
does
not
generally
enter
upon
a
determination of questions which demand
an elaborate examination of evidence to
establish the right to enforce which the writ
is claimed. The High Court does not
therefore act as a court of appeal against
the decision of a court or tribunal, to
correct errors of fact, and does not by
assuming jurisdiction under Article 226
trench
upon
an
alternative
remedy
provided by statute for obtaining relief.
Where it is open to the aggrieved 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."

13. This Court is required not to
interfere in matters with regard to the
SARFAESI Act unless this Court finds
patent illegality and/or mala fide actions
being taken by the bank authorities. In the
present case, the bank has acted in
accordance with law as they have passed an
order
under
Section
13(3A) of the
SARFAESI Act and also served (attempted
to serve) the order, which came back in the
case of two of the petitioners as "door is
always locked".

14. In such a case, no mala fide
intent can be imposed on the bank
authorities. Furthermore, since Section
13(4)
notice
has
been
issued
and
subsequently 13(8) proceedings of sale has
also taken place, we do not find it fit to
interfere with the entire proceedings only
for the reason that service of the order
under Section 13(3A) of the SARFAESI
Act was not properly done.

15. The entire proceedings under
the SARFAESI Act was required to be
challenged by the petitioners before the
Debts Recovery Tribunal, which they have
done prior to filing of this writ and the
matter is pending before the Debts
Recovery Tribunal. Furthermore, there is a
provision for statutory appeal against the
4 All. Anuj Tyagi Vs. District Election Officer (Municipal Board General Election-2023),
 Collectorate District Ghaziabad & Ors.
285
orders passed by Debts Recovery
Tribunal
before
the
Debts
Recovery
Appellate Tribunal.

16. In light of the same, we do not
find any reason to interfere with the Section
13(4) proceedings and the subsequent
proceedings undertaken by the bank.

17. Accordingly, with the above
observations, the writ petition is dismissed.
----------
(2025) 4 ILRA 285
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2025
BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 6327 of 2025

Anuj Tyagi ...Petitioner
Versus
District Election Officer (Municipal Board
General
Election-2023),
Collectorate
District Ghaziabad & Ors. ...Respondents

Counsel for the Petitioner:
Akash Tyagi, Neha Tyagi, Pankaj Kumar
Tyagi, Satish Kumar Tyagi

Counsel for the Respondents:
C.S.C., Ramesh Kumar Pandey, Tarun
Agrawal

Civil Law - The Uttar Pradesh Municipal
Corporations Act, 1959 - Sections 63(3) &
62 (4)-Amendment application was moved by
election petitioner/respondent no. 4-to implead
the other five unsuccessful candidates as
respondents- allowed by an ex-parte order on
17.09.2024
-recall
application-rejected
-
impugned-defect of non-joinder of all contesting
candidates in an election petition is not a
curable defect- Section 63 (3) - in an election
petition, petitioner has to join as respondents in
his petition all the contesting candidates-Section
62(4)-provides the time limit for filing of election
petition-any defect can be cured within the time
limit prescribed -no alteration can be made
once the time prescribed therein expiresimpugned orders against the provisions of
Section 63(3) read with Section 62(4) of the Act
of 1959.

W.P. allowed. (E-9)

Cases Cited:

1. Smt. Jyoti Vs Kusma Devi, 2019 (2) AllLJ 262;

2. Ramanand Gaur Vs Ram Sanehi & ors., 2012
(4) ADJ 212

3. Patangrao Kadam Vs Prithviraj Sayajirao
Yadav Deshmukh & ors., (2001) 3 SCC 594.

4. Har Swarup Vs Brij Bhushan Saran, AIR 1967
SC 836;

5. Amin Lal Vs Hunna Lal, AIR 1965 SC 1243

6. Mohan Raj Vs Surendra Kumar, AIR 1969 SC
677;

7. Chaturbhuj Chunnilal Vs Election Tribunal,
Kanpur AIR 1958 All 809

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. The short controversy before the
Court is - "As to whether by amendment
application moved under Order VI Rule 17
CPC, amendment can be made in an
election petition filed by an unsuccessful
candidate impleading the other contesting
candidates who were not initially joined in
the election petition?"

2. Facts in brief, leading to the
present case, are that an election for
Corporator for Ward No. 87, Gyankhand
Indirapuram, Ghaziabad was held on
11.05.2023.
Counting
was
held
on
13.05.2023 and result was declared and
petitioner was declared to be successful