# M/s. Rafiq Traders & Ors v. D.M., Jalaun Place Orai & Ors

- **Citation:** (2020) 11 ILRA 406
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-14
- **Case number:** WRIT - C No. 15581 of 2020
- **Bench:** Naheed Ara Moonis, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-rafiq-traders-ors-v-d-m-jalaun-place-orai-ors-45414
- **Pages:** 10

## Headnote

Civil Law- SERFAESI Act,2002-Section 13
(2)
&
13
(4)-
Proceedings
against
Petitioner u/s 13 (2) and 13 (4)-against
which Writ filed-same was dismissed for
availability of alternative remedy u/s
17(1) of the Act-Bank has instituted Suit
for
recovery
of
outstanding
dues-is
pending-meanwhile-District
mgistrate
passed an order u/s 14(1) of the Act for
taking possession of property-There is no
violation of natural justice-Petitioner not
availed
the
alternative
remedy
and
cocealed the same-no illegality in the
order impugned.

W.P. dismissed. (E-9)

List of Cases cited:-
11 All. M/s. Rafiq Traders & Ors. Vs. D.M., Jalaun Place Orai & Ors.
407

## Text

406 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Having regard to the foregoing
discussion the necessary implication would
be that a person proceeded against is to be
informed about the material on the basis of
which the allegations made against him are
founded so that he may have an opportunity
of furnishing his explanation and putting
forward his version. Thereafter it would be
for the authority concerned to evolve its
own procedure so as to afford an
opportunity to the person concerned. The
procedure may vary with the facts,
circumstances and nature of the case but
the authority would be required to accord
consideration to the explanation furnished
and to take a decision in a fair and nonpartisan manner.

23. In the present case no material has
been placed on record by the respondents to
demonstrate that the authorities have
accorded consideration to the explanation
furnished by the petitioner against whom
an order having adverse civil consequences
has been passed.

24. Sri Pratik Chandra, learned
counsel appearing for respondent nos.2 and
3 has not disputed the aforesaid legal and
factual position and fairly submits that the
reply/explanation
submitted
by
the
petitioner would be duly considered by the
respondent no.3 within a period of two
months from today and a fresh order would
be passed.

25.

Having
regard
to
the
aforementioned facts and circumstances
and as agreed to by the counsel for the
parties, the writ petition is disposed of
leaving it open to respondent nos.2 and 3 to
pass
an
order
after
according
due
consideration
to
the
reply/explanation
submitted by the petitioner within a period
of two months from the date of presentation
of a copy of this order. The order/office
memorandum dated 06.08.2020, in so far as
it relates to petitioner, shall abide by the
fresh order to be passed as aforesaid.

26. It is made clear that this Court has
not expressed its view with regard to the
merits of the claim of the petitioner.
----------
(2020)11ILR A406
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.10.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE VIVEK VARMA, J.

WRIT - C No. 15581 of 2020

M/s. Rafiq Traders & Ors. ...Petitioners
Versus
D.M., Jalaun Place Orai & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Vineet Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Satish Chaturvedi, Sri P.P.
Srivastava

Civil Law- SERFAESI Act,2002-Section 13
(2)
&
13
(4)-
Proceedings
against
Petitioner u/s 13 (2) and 13 (4)-against
which Writ filed-same was dismissed for
availability of alternative remedy u/s
17(1) of the Act-Bank has instituted Suit
for
recovery
of
outstanding
dues-is
pending-meanwhile-District
mgistrate
passed an order u/s 14(1) of the Act for
taking possession of property-There is no
violation of natural justice-Petitioner not
availed
the
alternative
remedy
and
cocealed the same-no illegality in the
order impugned.

W.P. dismissed. (E-9)

List of Cases cited:-
11 All. M/s. Rafiq Traders & Ors. Vs. D.M., Jalaun Place Orai & Ors.
407
1.
Harshad
Govardhan
Sondagar
Vs
International Assessts Reconstruction Company
Limited & ors., (2014) 6 SCC 1

2. Kalyani Sales Company & anr. Vs U.O.I. &
anr., 2006 AIR (Punjab) 107.

3. Dalip Singh Vs St. of U.P. & ors., (2010)2 SCC
114.

4. Assistant Commissioner, Commercial Tax
Department Vs Shukla & brothers, (2010) 4 SCC
785.

5. Asit Kumar Kar Vs St. of W.B. & ors., 2009(2)
AWC 1628.

6. Ghurahoo Prasad @ G. Prasad & ors. Vs St. of
U.P. & ors., 2018 (10) ADJ 748.

7. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998)8 SCC 1.

8. Authorized Officer, State Bank of Travancore
& anr. Vs Mathew K.C.

9. Jafar Ahmad Khan Vs St. of U.P. & ors. (WritC No. 33616 of 2018), decided on 14.12.2018.

10.U.O.I. Vs Satyawati Tandon, (2010) 8 SCC
110

11.I.TC Limited Vs Blue Coast Hotel, (2018) LW
492,

12.St. of Mah. Vs Digamber, 1995(4) SCC 683

13.ICICI Bank Ltd. Vs Umakanta Mohapatra,
2019(13) SCC 497

(Delivered by Hon'ble Naheed Ara Moonis, J.
& Hon'ble Vivek Varma, J.)

1. Heard Shri Vineet Kumar Singh,
learned counsel for the petitioners, Shri
Satish Chaturvedi and Shri P.P. Srivastava,
learned counsel for the respondent Nos. 2
and 3 and learned Standing Counsel
representing respondent No. 1.

2. The instant petition has been filed
by the petitioners under Article 226 of the
Constitution
of
Indian
seeking
the
following relief:

"1. Issue a suitable writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
13.8.2020
passed
by
the
District
Magistrate, Jalaun at Orai in Case No. 49
of 2020 (State Bank of India, Main Branch
Orai Vs. M/s Rafiq Traders and others) and
the impugned order dated 10.1.2020 passed
by the District Magistrate, Jalaun at Orai
in Case No. 46 of 2020 (State Bank of India
Vs. Rafiq Traders and others) (Annexure
Nos. 8 and 5 to the writ petition.

2. Issue a writ, order or direction
in the nature of mandamus commanding
the respondents not to give effect to the
impugned orders referred to above.

3. Issue a suitable writ, order or
direction in the nature of mandamus
commanding the respondents to adjourn
the
proceeding
initiated
under
the
Securitisation
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2020 against the
petitioners until the decision in Original
Suit No. 209 of 2018 (State Bank of India
Vs. M/s Rafiq Traders and others), pending
in the Court of Civil Judge (SD), Jalaun at
Orai."

3. Proceeding has been undertaken
against the petitioners pursuant to the steps
taken under Section 13(2) and 13(4) of
Securitisation
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2020 (hereinafter
referred to as the SARFAESI Act"). From
the perusal of the record, it transpires that
against the aforesaid proceeding, the
petitioners had already approached this
Court by filing Writ-C No. 12422 of 2019
(M/s Rafiq Traders Vs. State Bank of India
and another) and a Coordinate Bench of
408 INDIAN LAW REPORTS ALLAHABAD SERIES
this
Court,
after
considering
the
submissions of the learned counsel for the
petitioners in that writ petition, dismissed
the petition as not maintainable on the
ground of availability of alternative remedy
of filing application/appeal under Section
17(1) of the SARFAESI Act.

4. However, the petitioners have not
availed the remedy of appeal under Section
17(1) of SARFAESI Act and again
approached this Court for quashing of the
impugned order which has been passed by
the District Magistrate, respondent No. 1 in
exercise of powers under Section 14(1) of
SARFAESI Act. The petitioners also
challenged
the
order
whereby
the
recall/restoration application moved by the
petitioners for recalling the order dated
10.1.2020 has also been rejected by the
District Magistrate, Jalaun by order dated
13.8.2020.

5. This is how the petitioners have
again approached this Court.

6. Learned counsel for the petitioners
submits that without considering the
objections of the petitioners and without
giving any opportunity of hearing to the
petitioners, the impugned order dated
10.1.2020 has been passed by respondent
No. 1, which is absolutely unjust, illegal
and arbitrary.

7. Learned counsel for the petitioners
further contended that for the same cause,
the respondent-bank has instituted a civil
suit being Original Suit No. 209 of 2018 in
the court of Civil Judge (SD), Jalaun
seeking recovery of outstanding dues from
the petitioners by way of attaching and
subjecting the disputed property to auction
proceeding, which is still pending for
consideration. When the suit filed by the
respondent-bank for recovery of the dues
was pending, the District Magistrate has
erred in passing the order which is in clear
violation of the Principle of Natural Justice.

8. Learned counsel for the petitioners
in support of his submissions, has relied
upon the following decisions of Hon'ble
Supreme Court as well as of High Courts:

1.
Harshad
Govardhan
Sondagar Vs. International Assessts
Reconstruction Company Limited and
others, (2014) 6 SCC 1.

2. Kalyani Sales Company and
another Vs. Union of India and another,
2006 AIR (Punjab) 107.

3. Dalip Singh Vs. State of
Uttar Pradesh and others, (2010)2 SCC
114.

4.
Assistant
Commissioner,
Commercial Tax Department Vs. Shukla
and brothers, (2010) 4 SCC 785.

5. Asit Kumar Kar Vs. State of
West Bengal and others, 2009(2) AWC
1628.

6. Ghurahoo Prasad alias G.
Prasad and others Vs. State of U.P. and
others, 2018 (10) ADJ 748.

7. Whirlpool Corporation Vs.
Registrar of Trade Marks, Mumbai and
others, (1998)8 SCC 1.

9. Learned counsel for the petitioners
has contended that in the above noted
cases, the writ petitions have been
entertained and the Hon'ble Apex Court has
consistently held that alternative remedy is
not
a
bar
for
the
enforcement
of
fundamental right or when there is
violation of principle of natural justice.

10. Learned counsel appearing on
behalf of respondent Nos. 2 and 3 has
refuted the contention of the learned
11 All. M/s. Rafiq Traders & Ors. Vs. D.M., Jalaun Place Orai & Ors.
409
counsel for the petitioners and has
submitted that there is no illegality or
perversity in the order passed by the
District
Magistrate
in
initiating
the
proceeding in exercise of powers under
Section 14 (1) of the SARFAESI Act for
taking possession of the property in
question. The Magistrate was well within
his jurisdiction in passing the impugned
order.

11.

Learned
counsel
for
the
respondents
further
submits
that
the
petitioners have not approached this Court
with clean hands as is evident from the
pleadings as the petitioner has earlier
approached
this
Court
against
the
proceeding initiated against them under
Section 13(2) and 13(4) of the Act. At that
stage, the petitioners had never replied to
the notice issued under Section 13(2) by the
Bank for the realization of the loan amount.
If he would have filed the objection within
stipulated period of 60 days, it could have
been considered by the bank, but failure on
the part of the petitioners to reply to the
notice, the Bank has proceeded under
Section 13(4) of the Act for taking
possession of the property in question.
Even, thereafter, the petitioners had an
alternative remedy to approach the Bank,
but on account of their failure to do so, the
proceeding under Section 13(4) of the Act
was initiated against them.

12. Being aggrieved by the said
proceeding, the petitioners had filed writ
petition, which too has been dismissed vide
order
dated
22.4.2019
directing
the
petitioners to avail alternative remedy as
provided under Section 17(1) of the
SARFAESI Act. The said remedy was not
availed by the petitioners and now when
the order has been passed by the District
Magistrate on the application moved by the
Bank-authority for initiating proceeding for
taking possession of the property in
question, the petitioners had made a futile
exercise for moving an application for
recall of the said order, which too has been
rejected by respondent No. 1.

13.

Learned
counsel
for
the
respondents No. 2 and 3 has relied upon the
decision of Hon'ble Supreme Court in
Authorized
Officer,
State
Bank
of
Travancore and another Vs. Mathew
K.C. and the decision of this Court in Jafar
Ahmad Khan Vs. State of U.P. and
others (Writ-C No. 33616 of 2018),
decided on 14.12.2018.

14. Hon'ble Apex Court in Mathew
K.C. (Supra) has held that if alternative
remedy is available, normally the writ
petition
under
Article
226
of
the
Constitution of India ought not to be
entertained. In the aforesaid case, Hon'ble
Apex Court has relied upon various
decisions, particularly, Union Bank of
India Vs. Satyawati Tandon, (2010) 8
SCC 110.

15. Hon'ble Apex Court in Satyawati
Tandon (Supra) has held as under:

"Unfortunately, the High Court
overlooked the settled law that the High
Court will ordinarily not entertain a
petition
under
Article
226
of
the
Constitution if an effective remedy is
available to the aggrieved persons and that
this Rule applies with greater rigour in
matters involving recovery of taxes, cess,
fees, other types of public money and the
dues
of
banks
and
other
financial
institutions. In our view, while dealing with
the petitions involving challenge to the
action taken for recovery of the public
dues, etc. the High Court must keep in mind
410 INDIAN LAW REPORTS ALLAHABAD SERIES
that the legislations enacted by Parliament
and State Legislatures for recovery of such
dues are a code unto themselves inasmuch
as they not only contain comprehensive
procedure for recovery of the dues but also
envisage constitution of quasi-judicial
bodies for redressal of the grievance of any
aggrieved person. Therefore, in all such
cases, the High Court must insist that
before availing remedy under Article 226
of the Constitution, a person must exhaust
the remedies available under the relevant
statute."

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."

16. In similar circumstances, this
Court in Jafar Ahmad Khan (Supra)
dismissed the writ petition.

17. As the petitioners have alternative
remedy of approaching the DRT, hence the
petitioners do not deserve any indulgence
by this Court.

18.

We
have
considered
the
submissions advanced by the learned
counsel for the parties and have gone
through the case law relied upon by the
learned counsel for the parties. The
proceeding initiated against petitioner No.
1
by
issuing
demand
notice
dated
11.10.2018
under
Section
13(2)
to
discharge in full its liabilities amounting to
Rs. 8,78, 428/- within a period of 60 days.
The aforesaid notice was also served upon
the guarantors, who were arrayed as
petitioners No. 2 to 4 to clear the
outstanding dues of respondent-bank and
on failure to pay the outstanding dues, the
Bank has initiated proceeding under subclause (4) to Section 13 of the Act for
taking symbolic possession of the disputed
property by way of issuing notice dated
26.2.2019.

19. At this juncture, there is no pleading
of the petitioners that they have filed any
objections to the demand notice or to the
possession notice, rather the petitioners have
earlier approached this Court under Article
226 of the Constitution of India for quashing
of the proceeding initiated by the Bankauthority. The said petition came to be
dismissed
on
22.4.2019
directing
the
petitioners to avail alternative remedy
available by filing appeal under Section 17(1)
of the SARFAESI Act. Again no reason was
indicated in the pleading as to why the
petitioners avoided to approach the DRT and
it is also not the case of the petitioner No. 1
that he had made any attempt to approach the
Bank for the repayment of his loan after the
account of the petitioner No. 1 has been
declared NPA and only when the respondentBank approached the District Magistrate for
taking possession of the property in question
and the District Magistrate has passed the
order under Section 14 of the Act, the
petitioner moved a recall application for
recalling the order dated 10.1.2020 and for
the first time a plea has been taken that the
petitioner was not afforded any opportunity
of hearing prior to passing of the aforesaid
order.

20. For ready reference, Section 14 of
the SARFAESI Act is being reproduced
herein under:
11 All. M/s. Rafiq Traders & Ors. Vs. D.M., Jalaun Place Orai & Ors.
411

"14.
Chief
Metropolitan
Magistrate or District Magistrate to assist
secured creditor in taking possession of
secured asset.-

(1) Where the possession of any
secured assets is required to be taken by
the secured creditor or if any of the secured
assets is required to be sold or transferred
by
the
secured
creditor
under
the
provisions of this Act, the secured creditor
may, for the purpose of taking possession
or control of any such secured assets,
request, in writing, the Chief Metropolitan
Magistrate or the District Magistrate
within whose jurisdiction any such secured
asset or other documents relating thereto
may be situated or found, to take
possession
thereof,
and
the
Chief
Metropolitan Magistrate or as the case
may be, the District Magistrate shall, on
such request being made to him-

(a) take possession of such asset
and documents relating thereto; and

(b) forward such asset and
documents to the secured creditor.

Provided that any application by
the secured creditor shall be accompanied
by an affidavit duly affirmed by the
authorised officer of the secured creditor,
declaring that-

(i) the aggregate amount of
financial assistance granted and the total
claim of the Bank as on the date of filing
the application;

(ii) the borrower has created
security interest over various properties
and that the Bank or Financial Institution
is holding a valid and subsisting security
interest over such properties and the claim
of the Bank or Financial Institution is
within the limitation period;

(iii) the borrower has created
security interest over various properties
giving the details of properties referred to
in sub-clause (ii) above;

(iv) the borrower has committed
default in repayment of the financial
assistance
granted
aggregating
the
specified amount;

(v) consequent upon such default
in repayment of the financial assistance the
account of the borrower has been classified
as a non-performing asset;

(vi) affirming that the period of
sixty days notice as required by the
provisions of sub-section (2) of section 13,
demanding payment of the defaulted
financial assistance has been served on the
borrower;

(vii)
the
objection
or
representation in reply to the notice
received from the borrower has been
considered by the secured creditor and
reasons
for
non-acceptance
of
such
objection or representation had been
communicated to the borrower;

(viii) the borrower has not made
any repayment of the financial assistance
in spite of the above notice and the
Authorised Officer is, therefore, entitled to
take possession of the secured assets under
the provisions of sub-section (4) of section
13 read with section 14 of the principal
Act;

(ix) that the provisions of this Act
and the rules made thereunder had been
complied with:

Provided further that on receipt
of the affidavit from the Authorised Officer,
the District Magistrate or the Chief
Metropolitan Magistrate, as the case may
be, shall after satisfying the contents of the
affidavit pass suitable orders for the
purpose of taking possession of the secured
assets (within a period of thirty days from
the date of application):

Provided also that if no order is
passed
by
the
Chief
Metropolitan
Magistrate or District Magistrate within
the said period of thirty days for reasons
412 INDIAN LAW REPORTS ALLAHABAD SERIES
beyond his control, he may, after recording
reasons in writing for the same, pass the
order within such further period but not
exceeding in aggregate sixty days.

Provided
also
that
the
requirement of filing affidavit stated in the
first proviso shall not apply to proceeding
pending before any District Magistrate or
the Chief Metropolitan Magistrate, as the
case may be, on the date of commencement
of this Act.

(1A) The District Magistrate or
the Chief Metropolitan Magistrate may
authorise any officer subordinate to him-

(i) to take possession of such
assets and documents relating thereto; and

(ii) to forward such assets and
documents to the secured creditor.

(2) For the purpose of securing
compliance with the provisions of sub-
section
(1),
the
Chief
Metropolitan
Magistrate or the District Magistrate may
take or cause to be taken such steps and
use, or cause to be used, such force, as
may, in his opinion, be necessary.

(3)
No
act
of
the
Chief
Metropolitan Magistrate or the District
Magistrate done in pursuance of this
section shall be called in question in any
court or before any authority."

21. We are conscious of the settled
law that discretionary power under Article
226 of the Constitution is not absolute and
can be exercised judiciously in given facts
of a case and in accordance with law. In
view of the availability of statutory remedy
available to the petitioners under Section
17(1) of the Act, the petition is liable to be
dismissed at the threshold.

22. In I.TC Limited Vs. Blue Coast
Hotel, (2018) LW 492, Hon'ble Apex
Court was of the the view that debtor is not
entitled to the discretionary relief under
Article 226 of the Constitution which is
indeed an equitable relief. In the aforesaid
case, the Hon'ble Apex Court was of the
view that non-compliance of sub-section
3(A) of Section 13 cannot be of any avail to
the debtor whose conduct has been merely
to seek time and not to repay the loan as
promised.

23. In the case of State of
Maharashtra Vs. Digamber, 1995(4) SCC
683, Hon'ble Supreme Court observed as
under :

"Power of the High Court to be
exercised
under
Article
226
of
the
Constitution, if is discretionary, its exercise
must be judicious and reasonable, admits of
no controversy. It is has cautioned time and
again as to what particular rule of natural
justice to be applied to a particular case must
depends upon the facts and circumstances of
that case. If some principle of nature justice
has been contravened, the Court has to
decide whether the observance of that rule is
necessary on the just decision of the case for
that reason, a person's entitlement for relief
from a High Court under Article of the
Constitution, be it against the State or
anybody else, even if is founded on the
allegation of infringement of his legal right,
has to necessarily depend upon unblameworthy conduct of the person seeking relief,
and the Court refuses to grant the
discretionary relief to such person in exercise
of such power, when he approaches it with
unclean hands or blame- worthy conduct.

24. Hon'ble Supreme Court very
recently in ICICI Bank Limited Vs.
Umakanta Mohapatra, 2019(13) SCC
497 held as under:

" Delay condoned.

Leave granted.
11 All. M/s. Rafiq Traders & Ors. Vs. D.M., Jalaun Place Orai & Ors.
413

Despite several judgments of this
Court, including a judgment by Hon'ble
Mr. Justice Navin Sinha, as recently as on
30.01.2018, in Authorized Officer, State
Bank of Travancore and Anr. vs. Mathew
K.C., (2018) 3 SCC 85, the High Courts
continue to entertain matters which arise
under
the
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(SARFAESI), and keep granting interim
orders in favour of persons who are NonPerforming Assets (NPAs).

The writ petition itself was not
maintainable, as a result of which, in view
of our recent judgment, which has followed
earlier judgments of this Court, held as
follows:-

"18.
We
cannot
help
but
disapprove the approach of the High Court
for reasons already noticed in Dwarikesh
Sugar Industries Ltd. vs. Prem Heavy
Engineering Works (P) Ltd. and Another,
(1997) 6 SCC 450, observing:-

"32. When a position, in law, is
well settled as a result of judicial
pronouncement of this Court, it would
amount to judicial impropriety to say the
least, for the subordinate courts including
the High Courts to ignore the settled
decisions and then to pass a judicial order
which is clearly contrary to the settled
legal position. Such judicial adventurism
cannot be permitted and we strongly
deprecate the tendency of the subordinate
courts in not applying the settled principles
and in passing whimsical orders which
necessarily has the effect of granting
wrongful and unwarranted relief to one of
the parties. It is time that this tendency
stops."

The writ petition, in this case,
being not maintainable, obviously, all
orders passed must perish, including the
impugned order, which is set aside.

The appeals are allowed in the
aforesaid terms.

Pending applications, if any,
shall stand disposed of."

25. Hon'ble Apex Court has cautioned
time and again as to what particular rule of
natural justice to be applied to a particular
case must depend to a great extent upon the
facts and circumstances of that case. If
some principle of nature justice has been
contravened, the Court has to decide
whether the observance of that rule is
necessary for a just decision on the facts.

26. In the case in hand, the order
passed by the District Magistrate cannot
said to violative of Principle of natural
justice. In fact, it is specifically observed
that the petitioner No. 1 has neither paid
any heed to the notice, which was issued
under Section 13(2) of the Act nor filed any
objection with respect to the demand for
repayment of dues of the bank. Thus, it
does not lie in the mouth of the petitioner to
say that the District Magistrate has passed
the order without assigning any reasons or
opportunity of hearing ought to have been
given to the petitioners.

27. The cases, which have been cited
by the learned counsel for the petitioners
are not at all applicable to the facts of the
present case.

28.

In
Harshad
Govardhan
Sondagar (Supra) the case of the appellant
before the Hon'ble Apex Court was
dispossession of the premises under Section
14 of the Act was against the lessees of the
borrowers and their claim was that they are
entitled to remain in possession of the
secured assets and in that light the order
was passed to give opportunity of hearing
to the appellant-lessees and the secured
414 INDIAN LAW REPORTS ALLAHABAD SERIES
creditor. In the said case it has been laid
down by the Hon'ble Apex Court that
merely filing of a suit by the secured
creditor would not debar the bank to
proceed under the SARFAESI Act.

29. Kalyani Sales Company (Supra)
was a case related to pecuniary jurisdiction
of the DRT and the recovery tribunal was
directed to entertain and decide the appeal
filed by the petitioner in accordance with
law on payment of fixed court fee pursuant
to the proceeding under Section 13(4) of
the Act.

30. In Dalip Singh (Supra), the
Hon'ble Apex Court has imposed cost upon
the petitioner, who had approached the
Court under Article Article 136, 226 and 32
of the Constitution of India with unclean
hand. It has been observed that If there is
no candid disclosure of relevant and
material facts or the petitioner is guilty of
misleading the Court, his petition may be
dismissed
at
the
threshold
without
considering the merits of the claim.

31. In Assistant Commissioner,
Commercial Tax Department, Works
Contract and Leasing, Kota (Supra),
Hon'ble Apex Court reminded the High
Courts that while exercising powers under
Article 226 of the Constitution, there
should be some reasoning recorded by the
Court declining or granting relief to the
petitioners as in the said case, it was a
non-speaking order in just one paragraph
and that is why the Hon'ble Apex Court
interfered and remanded the matter.

32. The facts involved in Asit
Kumar Kar and Ghurahoo Prasad alias
G. Prasad and others (Supra) are also
not applicable to the facts of the present
case.

33. In Whirlpool Corporation
(Supra) question of jurisdiction was
involved, hence the writ petition was
entertained even though there was an
alternative remedy.

34. The second submission of the
learned counsel for the petitioners is that
the suit filed by the bank is pending and the
District Magistrate has ignored this fact and
proceeded to pass the order under Section
14(1) of the Act.

35. The answer to this question is
Section 34 of the SARFAESI Act, which is
extracted herein below:

"34. Civil court not to have
jurisdiction.--No civil court shall have
jurisdiction to entertain any suit or
proceeding in respect of any matter which
a Debts Recovery Tribunal or the Appellate
Tribunal is empowered by or under this Act
to determine and no injunction shall be
granted by any court or other authority in
respect of any action taken or to be taken in
pursuance of any power conferred by or
under this Act or under the Recovery of
Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993)."

36. From the perusal of second limb
of Section 34 of the Act, it would reveal
that no injunction can be granted by any
court or other authority in respect of any
action taken or to be taken in pursuance of
any power conferred by or under this Act.

37. In view of the above provision,
the petitioner cannot derive any benefit of
this objection also.

38. In the case in hand, the
petitioners, who had earlier approached this
Court, had an alternative remedy against
11 All. Kaden Glen Edward Moore Vs. State of U.P. & Ors.
415
the proceeding under Section 13(2) and
13(4) to approach the DRT, but has not
approached before the appropriate forum
and there in no candid disclosure of the
relevant material facts as to the reasons
why they have not availed the alternative
remedy, which clearly speaks in volume
that they are not interested to repay the
loan, which was taken by petitioner No. 1
by way back in the year 2018 and was
trying to linger on repayment on one
ground or the other.

39. The pleadings in the writ petition
are very bald and the allegations of violation
of principle of natural justice is rhetorical, as
such the relief sought by the petitioners is
highly misconceived. The writ petition is not
instituted to show any bonafide from any
remote corner but only to somehow install
further action of the bank-secured creditor. It
cannot be said that the orders passed by the
District Magistrate are without jurisdiction or
non-speaking. There is no illegality or
infirmity in the impugned orders passed by
the District Magistrate, which may call for
any interference.

40. In view of what has been indicated
herein above, we find no justification for
invoking our extraordinary jurisdiction under
Article 226 of the Constitution of India. The
writ petition sans any merit is accordingly
dismissed.
----------
(2020)11ILR A415
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2017

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE RAJIV LOCHAN MEHROTRA, J.

WRIT - C No. 63120 of 2014
Kaden Glen Edward Moore ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Vishnu
Gupta,
Sri
B.K.
Singh
Raghuvanshi, Sri Chandan Sharma

Counsel for the Respondents:
C.S.C.

Civil Law- Right to Fair Compensation and
Transperency
in
Land
Acquisition,
Rehabilitation and Resettlement Act,2013-
Section 19-Lease was for 50 years-got
determined on 3rd November,1958-not
extended-no
material
placed-neither
Petitioner nor his predecessors could
claim any right of compensation as the
land
stood
vested
in
State
after
determination of lease-W.P. dismissed.
(E-9)

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
& Hon'ble Rajiv Lochan Mehrotra, J.)

1. This writ petition has been filed
praying for a mandamus commanding the
respondents particularly the Collector,
Allahabad to declare an award in terms of
Section 11 read with Section 11(A) of the
Land Acquisition Act, 1894 and now in
terms of Section 19 of the Right to Fair
Compensation and Transparency in Land
Acquisition,
Rehabilitation
and
Resettlement Act, 2013.

2. The background in which this writ
petition has been filed is that the land in
relation to site no. 34 Civil Station,
Allahabad was proposed to be acquired and
proceedings were undertaken by issuing
notifications under Sections 4 and 6 of the
Land
Acquisition
Act,
1894.
After
acquisition of the land the same was
handed over to the Allahabad Development
Authority
for
development
and
its