# Ramesh Chandra Yadav v. Union of India & Ors

- **Citation:** (2020) 11 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-28
- **Case number:** WRIT - C No. 14666 of 2020
- **Bench:** Naheed Ara Moonis, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-yadav-v-union-of-india-ors-45411
- **Pages:** 4

## Headnote

A.S.G.I., Sri Ashish Agrawal

A. Securitization and Reconstruction of
Financial
Assets
and
Enforcement
of
Security Interest Act, 2002 - Sections 13
and 17 - Auction of property - Alternative
Remedy - Entertaining the writ petition
granting
interim
relief
have
serious
adverse impact on the right of bank and
other financial institutions to recover their
dues - Held, the petitioner has an
alternative remedy before Debt Recovery
Tribunal under Section 17 of the Act. (Para
9)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
fairness in procedure being followed by the
authority vested with such powers."

21. This Court is in respectful
agreement with the view taken in the case
of Smt. Manju Arora (supra) and in light
of what has been observed above, finds
that the order passed by the authority
under Section 5A(2) of the Act suffers
from colourable exercise of power and
cannot be sustained. The estate officer
while passing such order has in effect
usurped the jurisdiction which otherwise
vested in the Statute by virtue of Section 5
of the Act and required a notice for such
purposes to be issued under Section 4 of
the Act. The consequence of the order
passed is that the safeguards contemplated
under Sections 4 and 5 of the Act have
been ignored and the right of occupant
under Section 9 of the Act of appeal has
also been taken away. Since the authority
competent is yet to adjudicate the status of
petitioner with reference to the applicable
provisions of law, therefore, this Court is
not required to embark upon such inquiry
at the first instance directly under Article
226 of the Constitution of India, as
contended by Sri Rai, inasmuch as it
would result in denial of statutory remedy
of appeal etc.

22. Consequently, writ petition
succeeds and is allowed. Order impugned
dated 28.2.2020 passed by the Estate
Officer, Meerut Cantt. Meerut, is hereby
quashed. It shall, however, be open for the
respondents to determine the question
whether petitioner is an unauthorised
occupant or not? The petitioner also
undertakes
not
to
raise
any
fresh
construction or activity over the plot in
question and would also not create any
third party rights.
----------
(2020)11ILR A380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.09.2020

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

WRIT - C No. 14666 of 2020

Ramesh Chandra Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gaurav Tiwari, Sri Javed Khan

Counsel for the Respondents:
A.S.G.I., Sri Ashish Agrawal

A. Securitization and Reconstruction of
Financial
Assets
and
Enforcement
of
Security Interest Act, 2002 - Sections 13
and 17 - Auction of property - Alternative
Remedy - Entertaining the writ petition
granting
interim
relief
have
serious
adverse impact on the right of bank and
other financial institutions to recover their
dues - Held, the petitioner has an
alternative remedy before Debt Recovery
Tribunal under Section 17 of the Act. (Para
9)
Writ Petition dismissed (E-1)
Cases relied on :-
1. United Bank of India Vs Satyawati Tandon &
ors., (2010) 8 SCC 110
2. Authorized Officer, State Bank of Tranvancore
& anr. Vs Mathew K.C. (2018) 3 SCC 85

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

1. Heard learned counsel for the
petitioner, Shri Ashish Agrawal, learned
counsel for respondent nos.2 & 3 and the
11 All. Ramesh Chandra Yadav Vs. Union of India & Ors.
381
learned
Standing
Counsel
for
the
respondent no.1 and gone through the
record.

2. By means of the present writ
petition, the petitioner has invoked the
extra ordinary jurisdiction of this Court
under Article 226 of the Constitution of
India with the following prayer:

1. To issue a writ, order order or
direction in the nature of certiorari for
quashing the impugned notice dated
29.7.2020 issued by the respondent Bank;

2. To issue a writ, order or
direction in the nature of mandamus
restraining the respondent Bank from sale
of the immovable property of the petitioner
in pursuance to the impugned notice.

3. The submission of the learned
counsel for the petitioner is that the
impugned auction sale notice has been
issued by the respondent Bank in an illegal
manner without adopting the procedure
prescribed under the Act which is nothing
but to cause sheer harassment to the
petitioner. It is further submitted that the
impugned notice has been issued during
pandemic of Covid-19 hence the auction of
the respondent Bank requires interference
in view of the fact that the vires of Section
2(o)(a) of the SARFAESI Act has been
challenged by filing a Writ-C No.30846 of
2018. Despite the aforesaid fact, the
respondent Bank has issued notice to the
petitioner for auction of the immovable
property of the petitioner.

4. Learned counsel for respondent
nos.2 & 3 and the learned Standing
Counsel for the respondent no.1 have
refuted the submissions advanced by the
learned counsel for the petitioner and
contended that in terms of the E Auction
Sale Notice, the date was fixed for auction
on 19.8.2020. In view of Section 13(8) of
the SARFAESI Act the petitioner is
entitled to redeem the secured assets if he
pays
the
entire
amount
before
the
sale/transfer of the secured asset. The
petitioner was under legal obligation to pay
the outstanding dues. It is further contended
that the petitioner, even otherwise, can take
all these objections before the Debts
Recovery Tribunal under Section 17 of the
SARFAESI Act. The language of Section
17 is wide enough to include any person
who is aggrieved by the action taken under
Sections 13(2) and 13(4) of the Act
inasmuch as it uses the word 'any person
(including borrower)'.

5. On perusal of the E Auction Sale
Notice it transpires that the proceedings
have been undertaken pursuant to steps
taken under Section 13(2) & 13(4) of the
Securitisation
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI
Act).

6. At this juncture, it would be
appropriate to refer the decision of United
Bank of India Vs. Satyawati Tandon and
others reported in 2010 (8) SCC 110, in
which Hon'ble the Apex Court has
observed that the writ petition ought not to
entertain in view of the alternate statutory
remedy available holding:-

"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
382 INDIAN LAW REPORTS ALLAHABAD SERIES
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
that the legislation's 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.

***

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."

7.

The
aforesaid
decision
in
Satyawati Tandon (Supra) has been
reiterated and followed in various decision
by the Hon'ble Apex Court. The reasons for
not entertaining the petition where there is
efficacious
and
alternative
remedy
available has been recently dealt with in
extenso by the Hon'ble Apex Court in
Authorized
Officer,
State
Bank
of
Travancore and another reported in
2018(3) SCC85, of which the relevant
extract is reproduced as here under;

"9. The statement of objects and
reasons of the SARFAESI Act states that
the banking and financial sector in the
country was felt not to have a level playing
field in comparison to other participants in
the financial markets in the world. The
financial institutions in India did not have
the power to take possession of securities
and
sell
them.
The
existing
legal
framework
relating
to
commercial
transactions had not kept pace with
changing
commercial
practices
and
financial sector reforms resulting in tardy
recovery of defaulting loans and mounting
non-performing
assets
of
banks
and
financial institutions. The Narasimhan
Committee
I
and
II
as
also
the
Andhyarujina Committee constituted by the
Central Government Act had suggested
enactment
of
new
legislation
for
secularization and empowering banks and
financial institutions to take possession of
securities and sell them without court
intervention which would enable them to
realise long term assets, manage problems
of liquidity, asset liability mismatches and
improve recovery. The proceedings under
the Recovery of Debts due to Banks and
Financial
Institutions
Act,
1993,
(hereinafter referred to as 'the DRT Act')
with
passage
of
time,
had
become
synonymous with those before regular
courts affecting expeditious adjudication.
All these aspects have not been kept in
mind and considered before passing the
impugned order.

"10. Even prior to the SARFAESI
Act, considering the alternate remedy
available under the DRT Act it was held in
Punjab National Bank vs. O.C. Krishnan
and others, (2001) 6 SCC 569, that :-
11 All. Amit Kumar Vs. State of U.P. & Anr.
383

"6. The Act has been enacted with
a view to provide a special procedure for
recovery of debts due to the banks and the
financial institutions. There is a hierarchy of
appeal provided in the Act, namely, filing of
an appeal under Section 20 and this fast-track
procedure cannot be allowed to be derailed
either by taking recourse to proceedings
under Articles 226 and 227 of the
Constitution or by filing a civil suit, which is
expressly barred. Even though a provision
under an Act cannot expressly oust the
jurisdiction of the court under Articles 226
and 227 of the Constitution, nevertheless,
when there is an alternative remedy available,
judicial prudence demands that the Court
refrains from exercising its jurisdiction under
the said constitutional provisions. This was a
case where the High Court should not have
entertained the petition under Article 227 of
the Constitution and should have directed the
respondent to take recourse to the appeal
mechanism provided by the Act."

8. Thus entertaining the writ petition
granting interim relief have serious adverse
impact on the right of bank and other
financial institutions to recover their dues.

9. So far as the recovery of loan
during lock down due to Covid-19
Pandemic is concerned, Reserve Bank of
India
has
already
announced
certain
moratorium on loan repayment. However,
the moratorium is only deferral and not a
waiver on payment of loan amount
otherwise it would put the financial
viability of banks at risk and depositors
interest in jeopardy. The petitioner cannot
be allowed to sit on the fence and wait and
thereafter coming to the writ court for the
redressal of his grievance.

10. In view of the aforesaid facts and
circumstances, as the petitioner has an
alternative
remedy
before
the
Debts
Recovery Tribunal under Section 17 of the
Act, we are not inclined to exercise our
extraordinary jurisdiction in the matter. The
impugned notice does not suffer from any
error or illegality, hence the writ petition
sans any merit is accordingly, dismissed.
----------
(2020)11ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

WRIT - C No. 14747 of 2020

Amit Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Kshitij Shailendra, Sri Vikrant Singh
Parihar

Counsel for the Respondents:
C.S.C.

Useless
Formality
Theory-Contracts
awarded
by
Department
of
Food
Controller for certain centres cancelled for
years 2020-21 ans 2021-22 and Petitioner
blacklisted-as his mother was owner of
rice
mill-which
was
one
of
the
disqualification-three days time granted
to
submit
response-Petitioner
instead
replying
sought
three
weeks
timeimpugned order passed-not illegal-mother
being
owner
is
admitted
fact-false
declaration given admitted-order cannot
be illegal merely for being in violation of
natural justice.W.P. dismissed.

Held, It would be in such situation that' useless
formality theory' may be pressed into if it would
be reasonable to believe that a fair hearing
would make no difference or that grant of a