# M/s S.S. Co., Dist. Bijnor & Anr v. D.M./Collector Bijnor & Ors

- **Citation:** (2020) 12 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-21
- **Case number:** Writ - C No. 17081 of 2020
- **Bench:** Naheed Ara Moonis, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-s-s-co-dist-bijnor-anr-v-d-m-collector-bijnor-ors-45622
- **Pages:** 7

## Headnote

law-
Securitisation
and
Reconstruction
of
Financial
Assets
and
Enforcement of Security Interest Act, 2002 -
Section 14 - contemplates for handing over
possession of the property to the secured
creditor - proceeding under Section 14 of the
Act is a consequential action of Section 13 (4)
of the Act - where a statute provides
efficacious and adequate remedy, the High
Court will do well in not entertaining a petition
under Article 226. On misplaced consideration,
statutory procedures cannot be allowed to be
circumvented. (Para - 3,7)

Challenging the order of the District Magistrate,
Bijnor dated 05.03.2020 passed under Section
14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest Act, 2002. (Para - 2)

Held: - Declined to entertain the present petition and
relegate the petitioners to pursue the alternative
remedy as available to them under the law. (Para - 11)

Writ Petition dismissed. (E-7)

List of Cases cited: -

## Text

488 INDIAN LAW REPORTS ALLAHABAD SERIES
cess for the years 1951-52 to 1965-66 and
they gave no reasons before the High Court
in these writ petitions why they did not
make the prayer for refund of the amounts
paid during the years in question. Avoiding
multiplicity
of
unnecessary
legal
proceedings should be an aim of the
Courts. Therefore, the appellants could not
be allowed to split up their claims for
refund and file writ petitions in this
piecemeal fashion. If the appellants could
have, but did not, without any legal
justification, claim refund of the amounts
paid during the years in question, in the
earlier writ petitions, we see no reason why
the appellants should be allowed to claim
the amounts by filing writ petitions again.
In the circumstances of this case, having
regard to the conduct of the appellants in
not claiming these amounts in the earlier
writ petitions without any justification, we
do not think, we would be justified in
interfering with the discretion exercised by
the High Court in dismissing the writ
petitions which were filed only for the
purpose of obtaining the refund....in view of
the above, the petition is liable to be
dismissed as not maintainable and it is
dismissed accordingly...."

8. In our view, the relief claimed in
the present writ petition is same as in the
earlier writ petition and as such this is the
second writ petition for the same cause of
action and even otherwise, if the petitioner
has not claimed the relief in the earlier writ
petition which he ought to have claimed, he
cannot maintain the present writ petition. It
is, accordingly, dismissed.
----------
(2020)12ILR A488
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2020

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

Writ - C No. 17081 of 2020

M/s S.S. Co., Dist. Bijnor & Anr. ...Petitioners
Versus
D.M./Collector Bijnor & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Afzal

Counsel for the Respondents:
C.S.C., Ms. Sudha Pandey

(A)
Civil
law-
Securitisation
and
Reconstruction
of
Financial
Assets
and
Enforcement of Security Interest Act, 2002 -
Section 14 - contemplates for handing over
possession of the property to the secured
creditor - proceeding under Section 14 of the
Act is a consequential action of Section 13 (4)
of the Act - where a statute provides
efficacious and adequate remedy, the High
Court will do well in not entertaining a petition
under Article 226. On misplaced consideration,
statutory procedures cannot be allowed to be
circumvented. (Para - 3,7)

Challenging the order of the District Magistrate,
Bijnor dated 05.03.2020 passed under Section
14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security
Interest Act, 2002. (Para - 2)

Held: - Declined to entertain the present petition and
relegate the petitioners to pursue the alternative
remedy as available to them under the law. (Para - 11)

Writ Petition dismissed. (E-7)

List of Cases cited: -

1. United Bank of India Vs Satyawati Tondon &
ors., (2010) 8 SCC 110

2. Kanaiyalal Lalchand Sachdev & ors. Vs St. of
Mah. & ors., (2011) 2 SCC 782

3. Standard Chartered Bank Vs Noble Kumar &
ors.,
(2013)
9
SCC
620
12 All. M/s S.S.Co., Dist.Bijnor & Anr. Vs. D.M./Collector Bijnor & Ors.
489
4. GM, Sri Siddeshwara Co-operative Bank
Limited & anr. Vs Sri Ikbal & ors., (2013) 10
SCC 83

5. Authorized Officer, State Bank of Travancore
& anr. Vs Mathew K.C., (2018)3 SCC 85

6. Baburam Prakash Chandra Maheshwari Vs
Antarim Zila Parishad, AIR 1969 SC 556

7. Whirlpool Corporation VS Registrar of Trade
Marks, (1998) 8 SCC 1

8. Harbanslal Sahnia Vs Indian Oil Corporation
Ltd., (2003) 2 SCC 107

9. Dwarikesh Sugar Industries Ltd Vs Prem
Heavy Engineering Works (P) Ltd & anr., (1997)
6 SCC 450

10. ICICI Bank Ltd Vs Umakanta Mohapatra,
Civil Appeal Nos. 10243-10250 of 2018

11. Sushma Yadav & ors. Vs St. of U.P. & ors.,
Writ-C No. 14645 of 2019, 2019 (9) ADJ 102
(DB)

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

1. Heard Sri Mohd. Afzal, learned
counsel for the petitioner, learned Standing
Counsel for respondent nos. 1 to 3, and Ms.
Sudha Pandey, learned counsel appearing
for respondent no. 4.

2. By means of the present writ
petition the petitioners have come to this
Court challenging the order of the District
Magistrate, Bijnor dated 05.03.2020 passed
under Section 14 of the Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(for short, the "Act").

3. The proceeding under Section 14 of
the Act is a consequential action of Section
13 (4) of the Act. Section 14 of the Act
contemplates for handing over possession
of the property to the secured creditor. The
petitioners, if aggrieved by the aforesaid
order, can approach the Debts Recovery
Tribunal by filing an appeal under Section
17 of the Act.

4. The issue is no longer res integra.
The Hon'ble Supreme Court in United
Bank of India v. Satyawati Tondon and
others, (2010) 8 SCC 110, has observed as
under:

"42. There is another reason why
the impugned order should be set aside. If
respondent
No.1
had
any
tangible
grievance against the notice issued under
Section 13(4) or action taken under Section
14, then she could have availed remedy by
filing an application under Section 17(1).
The expression `any person' used in Section
17(1) is of wide import. It takes within its
fold, not only the borrower but also
guarantor or any other person who may be
affected by the action taken under Section
13(4) or Section 14. Both, the Tribunal and
the Appellate Tribunal are empowered to
pass interim orders under Sections 17 & 18
and are required to decide the matters
within a fixed time schedule. It is thus
evident that the remedies available to an
aggrieved person under the SARFAESI Act
are both expeditious and effective.

43. 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 person 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
490 INDIAN LAW REPORTS ALLAHABAD SERIES
dues, etc., the High Court must keep in
mind that the legislations enacted by
Parliament and State Legislatures for
recovery of such dues are 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, 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.

44. While expressing the aforesaid
view, we are conscious that the powers
conferred upon the High Court under Article
226 of the Constitution to issue to any person
or authority, including in appropriate cases,
any Government, directions, orders or writs
including the five prerogative writs for the
enforcement of any of the rights conferred by
Part III or for any other purpose are very wide
and there is no express limitation on exercise
of that power but, at the same time, we cannot
be oblivious of the rules of self-imposed
restraint evolved by this Court, which every
High Court is bound to keep in view while
exercising power under Article 226 of the
Constitution.

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.

XXXX XXXXX
XXXX

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.

56.
Insofar
as
this
case
is
concerned, we are convinced that the High
Court was not at all justified in injuncting the
appellant from taking action in furtherance of
notice issued under Section 13(4) of the Act. In
the result, the appeal is allowed and the
impugned order is set aside. Since the
respondent has not appeared to contest the
appeal, the costs are made easy."

5. In Kanaiyalal Lalchand Sachdev
and others Vs. State of Maharashtra and
others, (2011) 2 SCC 782, the Supreme
Court held as under:

"24. In City and Industrial
Development
Corporation
Vs.
Dosu
Aardeshir Bhiwandiwala & Ors. (2009) 1
SCC 168, this Court had observed that:

"30. The Court while exercising
its jurisdiction under Article 226 is dutybound to consider whether:

(a) adjudication of writ petition
involves
any
complex
and
disputed
questions of facts and whether they can be
satisfactorily resolved;

(b)
the
petition
reveals
all
material facts;

(c)
the
petitioner
has
any
alternative or effective remedy for the
resolution of the dispute;
12 All. M/s S.S.Co., Dist.Bijnor & Anr. Vs. D.M./Collector Bijnor & Ors.
491

(d)
person
invoking
the
jurisdiction is guilty of unexplained delay
and laches;

(e) ex facie barred by any laws of
limitation;

(f) grant of relief is against public
policy or barred by any valid law; and host
of other factors."

25. In the instant case, apart from
the fact that admittedly certain disputed
questions of fact viz. non-receipt of notice
under Section 13(2) of the Act, noncommunication of the order of the Chief
Judicial Magistrate, etc. are involved, an
efficacious statutory remedy of appeal
under Section 17 of the Act was available
to the appellants, who ultimately availed of
the same. Therefore, having regard to the
facts obtaining in the case, the High Court
was fully justified in declining to exercise
its jurisdiction under Articles 226 and 227
of the Constitution."

6. Further, in the case of Standard
Chartered Bank Vs. Noble Kumar &
Ors., reported in (2013) 9 SCC 620, the
Hon'ble Apex Court has held as under:

"27. The "appeal" under Section
17 is available to the borrower against any
measure taken under Section 13(4). Taking
possession of the secured asset is only one
of the measures that can be taken by the
secured creditor. Depending upon the
nature of the secured asset and the terms
and conditions of the security agreement,
measures other than taking the possession
of the secured asset are possible under
Section 13(4). Alienating the asset either by
lease or sale, etc. and appointing a person
to manage the secured asset are some of
those possible measures. On the other
hand, Section 14 authorises the Magistrate
only to take possession of the property and
forward the asset along with the connected
documents to the borrower (sic the secured
creditor). Therefore, the borrower is
always entitled to prefer an "appeal" under
Section 17 after the possession of the
secured asset is handed over to the secured
creditor. Section 13(4)(a) declares that the
secured creditor may take possession of the
secured assets. It does not specify whether
such a possession is to be obtained directly
by the secured creditor or by resorting to
the procedure under Section 14. We are of
the opinion that by whatever manner the
secured creditor obtains possession either
through the process contemplated under
Section 14 or without resorting to such a
process obtaining of the possession of a
secured asset is always a measure against
which a remedy under Section 17 is
available."

7. In GM, Sri Siddeshwara Cooperative Bank Limited and another Vs Sri
Ikbal and others, (2013) 10 SCC 83, the
Apex Court went on to observe that although
alternative remedy is not an absolute bar to the
exercise of extraordinary jurisdiction under
Article 226, yet, it is well settled that where a
statute provides efficacious and adequate
remedy, the High Court will do well in not
entertaining a petition under Article 226. On
misplaced consideration, statutory procedures
cannot be allowed to be circumvented.

8. So far as invoking of writ
jurisdiction in the matters of realization of
loan by the financial institutions are
concerned, the Hon'ble Apex Court in the
case of Authorized Officer, State Bank of
Travancore & Anr. Vs. Mathew K.C.,
(2018)3 SCC 85, while considering the
earlier judicial pronouncements made in
this regard, has held thus:

"16. It is the solemn duty of the
Court to apply the correct law without
492 INDIAN LAW REPORTS ALLAHABAD SERIES
waiting for an objection to be raised by a
party, especially when the law stands well
settled. Any departure, if permissible, has
to be for reasons discussed, of the case
falling under a defined exception, duly
discussed after noticing the relevant law. In
financial matters grant of ex-parte interim
orders can have a deleterious effect and it
is not sufficient to say that the aggrieved
has the remedy to move for vacating the
interim
order.
Loans
by
financial
institutions are granted from public money
generated at the tax payers expense. Such
loan does not become the property of the
person taking the loan, but retains its
character of public money given in a
fiduciary capacity as entrustment by the
public. Timely repayment also ensures
liquidity to facilitate loan to another in
need, by circulation of the money and
cannot be permitted to be blocked by
frivolous litigation by those who can afford
the luxury of the same. The caution
required, as expressed in Satyawati Tandon
(supra), has also not been kept in mind
before passing the impugned interim
order:-

"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 Vs Antarim Zila Parishad,
AIR 1969 SC 556; Whirlpool Corporation
VS Registrar of Trade Marks, (1998) 8
SCC 1; and Harbanslal Sahnia Vs Indian
Oil Corporation Ltd., (2003) 2 SCC 107
and some other judgments, then the High
Court may, after considering all the
relevant parameters and public interest,
pass an appropriate interim order."

17. The writ petition ought not to
have been entertained and the interim
order granted for the mere asking without
assigning special reasons, and that too
without even granting opportunity to the
Appellant to contest the maintainability of
the writ petition and failure to notice the
subsequent
developments
in
the
interregnum. The opinion of the Division
Bench that the counter affidavit having
subsequently been filed, stay/modification
could be sought of the interim order cannot
be considered sufficient justification to
have declined interference.

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
12 All. M/s S.S.Co., Dist.Bijnor & Anr. Vs. D.M./Collector Bijnor & Ors.
493
necessarily has the effect of granting
wrongful and unwarranted relief to one of
the parties. It is time that this tendency
stops."

19. The impugned orders are
therefore contrary to the law laid down by
this Court under Article 141 of the
Constitution and unsustainable. They are
therefore set aside and the appeal is
allowed.

20. All questions of law and fact
remain open for consideration in any
application by the aggrieved before the
statutory forum under the SARFAESI Act."

9. In a recent judgment of Apex Court
in Civil Appeal Nos. 10243-10250 of 2018
titled as "ICICI Bank Ltd Vs Umakanta
Mohapatra" decided on 5.10.2018, the
Apex Court has not approved the practice
of granting interim order in reference to the
matters arising out of the SARFAESI Act,
and held as under:-

"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
Another VS Mathew KC., (2018) 3 SCC 85,
the High Courts continue to entertain
matters which arise under 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."

10.

Following
the
aforesaid
judgments of the Hon'ble Supreme Court a
Division Bench of this Court in the case of
Sushma Yadav and others v. State of
U.P. And others, Writ-C No. 14645 of
2019, decided on 15.05.2019, reported in
2019 (9) ADJ 102 (DB), has held as under:

"20. It is the solemn duty of the
court to ensure that the trust imposed by
the public in dealing with public money
which is being lent by the Financial
Institutions is not mis-utilized or mis-spent.
It is not for the Court to distribute
largessee or to show misplaced sympathy
with borrowers who had taken the
advantage of loan facility but are tardy in
making
repayments.
There
may
be
sometimes
genuine
reasons
for
the
borrowers for being late in payments but
such issues can be addressed by the
494 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate forum provided for dealing
with these matters. The extraordinary
jurisdiction of Court is not to be invoked in
such cases."

11. Thus, for the reasons indicated
above, we decline to entertain the present
petition and relegate the petitioners to
pursue the alternative remedy as available
to them under the law. The writ petition is
accordingly dismissed.

12. No order as to costs.
----------
(2020)12ILR A494
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2020

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ - C No. 18437 of 2020

Jai Ram Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Samujh Singh

Counsel for the Respondents:
C.S.C., Sri Ram Gopal Tripathi

(A) Civil law - Administrative law - Principle of
audi alteram partem - fundamental principle
of the rules of natural justice - Exercise of a
power which affects the rights of an individual
must be exercised in a manner which is fair
and just and not arbitrarily or capriciously -
Administrative
order
involving
civil
consequences must necessarily be made in
conformity with rules of natural justice - Any
decision made without compliance of principle
of natural justice i.e. the rule of audi alteram
partem, cannot be sustained. (Para - 5)
Challenged a communication/order- whereunder the
petitioner has been directed to deposit an amount
pursuant to an enquiry report within a specified time
period failing which proceedings for recovery would
be initiated against him - No opportunity of hearing
afforded to the petitioner before passing the
aforesaid order and also during the course of the
enquiry . (Para - 3,4)

Held: - The impugned order passed by the
District Manager; U.P. Cooperative Federation
limited is held to be unsustainable being
violative of the rule of audi alteram partem
which is a fundamental principle of natural
justice. impugned order dated 01.09.2020 is
quashed. (Para - 7)

Writ Petition disposed of. (E-7)

List of Cases cited: -

1. Mahipal Singh Tomar Vs St. of U.P. & ors. ,
(2013) 16 SCC 771

2. Ridge Vs Baldwin, (1963) 2 AII ER 66 (HL)

3. Chief Constable of North Wales Plice Vs
Evans, (1982) AII ER 141 (HL)

4. St. of Orissa Vs Binapani Dei, AIR 1967 SC 1269

5. U.P. Warehousing Corporation Vs Vijay
Narayan Vajpayee, (1980) 3 SCC 459

(Delivered by Hon'ble Surya Prakash Kesarwani,
J. & Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard the learned counsel for the
petitioner, learned standing counsel for respondent
nos.1, 3, 4 and 5 and Sri Ram Gopal Tripathi,
learned counsel appearing for respondent no.2.

2. With the consent of the learned counsel
for the parties, this writ petition is being finally
heard without calling for a counter affidavit.

3. The writ petition has been filed
seeking
to
challenge
a
communication/order
dated
01.09.2020
whereunder the petitioner has been directed