Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J., disposed of this writ petition filed under Article 226 of the Constitution of India.

The petitioner here is the accused in the suit filed under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner took a loan from the Co-operative Urban Bank Ltd (Respondent 1). The petitioner committed some default in the re-payment, hence the initial suit was filed under SARFAESI. The present petition is against the measures initiated under SARFAESI for recovery of the loan amount by the Bank. This Act enables the secured creditors to take possession of the securities of the defaulters, without any intervention of the Court and also alternatively to authorize any Securitization or Reconstruction Company to acquire financial assets of any Bank or Financial Institutions. 

The counsel for the petitioner, K.V. Anil Kumar, contended that default was committed because of some reasons beyond the control of the petitioner. The only prayer of the petitioner is that some time may be granted so that he can clear all the arrears and regularize his account in the bank.

The counsel for the respondent, Deepa Arun V., contended that the bank is only interested in realizing the arrears amounting to Rs 9,23,000, expeditiously. 

The Court referred to the judgments of the Supreme Court- Union Bank of India v. Stayawati Tandon, (2010) 8 SCC 110 and State Bank of Travancore v. Mathew K.C., 2018 (1) KLT 784. The judgment in the above-mentioned case was that, where any alternate remedy is available, the petition under Article 226  should not be entertained by the High Court. Section 17 of the SARFAESI Act provides for the right to appeal. It enumerates that any person who is aggrieved by the measures referred in Section 13(4) of the Act shall make an application to the Debt Recovery Tribunal within 45 days from the date on which measures have been taken. Though the rule of exhaustion of alternate remedy is a rule of discretion and not one of compulsion.

The Court held that it will be indulging for the last and final time as the respondents are also agreeable for an opportunity to salvage the property of the petitioner. Further, the Court directed the petitioner to deposit the total arrears in easy installments divided into 10 equal and monthly installments starting from 15-01-2020. Only after compliance with the said order, the bank account was supposed to be regularized. It was directed that the petitioner has to simultaneously pay regular EMIs without any default. In case of non- compliance on behalf of the petitioner, the benefit granted by this Court would stand vacated and the Bank will be entitled to proceed to recover the loan amount through the procedure stated in the SARFAESI Act. [Abdul Salam v. General Manager, Co-operative Urban Bank Ltd., 2019 SCC OnLine Ker 5762, decided on 27-12-2019]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pankaj Naqvi and Suresh Kumar Gupta, JJ., while disposing of this petition directed the complainant to avail alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC.

The instant writ petition was filed for seeking a writ of mandamus commanding the respondent to conduct a fair investigation, under Sections 452, 376, 504, 506 IPC and 3(2)(v) SC/ST Act.

Counsels for the petitioner, Santosh Kumar Pandey and Rajnish Kumar Pandey submitted that petitioner is an informant and despite an application to the authorities concerned for a fair investigation, no action whatsoever was taken.

It was propounded in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and reiterated in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 SCC 277 that in the event of unsatisfactory investigation, remedy of the aggrieved person is not to approach the High Court under Article 226 of the Constitution of India but to approach the Magistrate concerned under Section 156(3) CrPC.

The Court observed that in this country, the High Courts are flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. If the High Courts entertain such writ petitions, there will be no work other than these. [Kamlesh Kumari v. State of U.P., 2019 SCC OnLine All 3873, decided on 18-10-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal against the order where the Madras High Court had after giving detailed findings on merits, relegated to the statutory remedy of filing the appeal before Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934, the bench of Arun Mishra and MR Shah, JJ ordered that the proceedings before the Appellate Authority will not be affected by the findings recorded by the High Court. It said,

“Since the petitioner has been relegated to the statutory remedy of filing the appeal, the observation made by the High Court shall not come in the way of the petitioner.”

The Court was hearing the case wherein the RBI had cancelled the registration of petitioner company Nahar Finance and Leasing Limited for non-compliance of the minimum criteria of net owned fund. Hence,

  • a Writ petition was filed by the said company challenging the order of the cancellation of registration on the ground of natural justice as the cancellation order showed that the RBI rejected the replies of the company in one line.
  • The single judge granted time for compliance.
  • RBI filed a Writ Petition against the order of the Single Judge.
  • Division bench set aside the judgment of the Single Judge after deciding the matter on merits and relegated the parties to Appellate Authority (Alternative Remedy) under section 45 IA (7) of Reserve Bank of India Act 1934.

Advocate Swarnendu Chatterjee, in his plea, had argued that the High Court has,

“put a full stop which is akin to civil death of the petitioner companies even when it was relegating the matter to the appellate authority.”

The Madras HC verdict in Viswapriya Financial Services and Securities Limited V. Executive Director, Reserve Bank of India, No 1932 of 2015 was also referred to wherein the Honourable Division Bench remitted the matter to the Appellate Authority but refrained from giving any finding on merit and especially on similar issue regarding opportunity of being heard prior to cancellation of registration under section 45 IA (6) of Reserve Bank of India Act, 1934 was also not given as the bench was remitting the matter to the Appellate Authority envisaged under subsection 7 to section 45 IA of Reserve Bank of India Act, 1934. Pertinently the honourable Division Bench therein had directed the Appellate Authority to consider the matter independently without being influenced by the judgments of learned Single Judge and Division Bench.

[Nahar Finance and Leasing Ltd v. Regional Director, RBI, Special Leave to Appeal (C) No(s).17243-17245/2019, order dated 29.07.2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: An application filed before a Bench of Sheel Nagu, J., by petitioner for grant of permit for the corridor route, i.e. Narsinghgarh to Barai via specified places was dismissed by respondent, i.e. Secretary, State Transport Authority. Hence, petitioner filed this petition under Article 227 of the Constitution invoking supervisory jurisdiction.

It was found that petitioner had an alternative statutory remedy of approaching the State Transport Appellate Authority at Gwalior. Petitioner had referred to the case of Waheed Khan v. Transport Department, WP No. 7703 of 2018, and submitted that there are no disputed questions of fact involved and since the order of the Secretary, STA, Gwalior is passed in violation of the statutory provision, the High Court can interfere.

High Court was of the view that the right interpretation of the Gazette is through the attending facts and circumstances of this case and the question to be decided which in the considered opinion of the Court involves disputed questions of fact, cannot be gone into under the writ jurisdiction. Since the statutory remedy was available the Court refused to exercise its writ jurisdiction and relegated the matter to the State Transport Appellate Authority at Gwalior. [Harish Kumar v. State of M.P., 2019 SCC OnLine MP 198, dated 24-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner had filed this petition before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by the respondent.

It was directed by the respondent that preference should be given to the warehouses of MP Warehousing and Logistic Corporation if allotment of warehouses occurs and after exhausting the same, other warehouses of private parties may be used, which were taken on rent. Petitioner submitted that he had taken a loan from SBI for construction of a warehouse and since the order of preference to the warehouses of MPWLC only was passed, petitioner could suffer undue loss despite entering into an agreement with the Warehousing Corporation. Thus, impugned order was not justified.

High Court found the arbitration clause in the agreement between petitioner and respondents according to which the validity of impugned order is a dispute and petitioner should have gone for arbitration. Accordingly, since there was an alternate remedy available, the present petition was dismissed as the Court could not invoke its jurisdiction under Article 226 of the Constitution of India. [Gupta Warehouse v. State of MP, 2019 SCC OnLine MP 98, dated 03-01-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before a Bench of Subodh Abhyankar, J., under Article 226 of the Constitution of India against the order passed by Election Officer, Barkatullah Vishwavidyalaya (Gair Shikshak) Karamchari Sangh, whereby an amended election notification for the election of Employees’ Union was published.

Facts of the case were that prior to the aforementioned notification there was another notification issued by respondent on the basis of which petitioners had submitted their form for post of Vice President and President respectively, where the only petitioner remained as contesting candidate and accordingly he should have been elected but the process was stayed by respondent as a result of State assembly elections. After this amended notification was released canceling the earlier election program. Thus, this amended notification was challenged before this Court by petitioner. Respondent University contended that matter relates to the election of Madhya Pradesh Society Registrikaran Adhiniyam, 1973 and petition against the order passed by office-bearer of the society is not maintainable due to the fact that another remedy was available with the petitioner under the said Adhiniyam.

High Court was of the view that respondent was right in stating that the petitioner could not have filed a case against the respondent as there were alternate remedies available with him. Therefore, this petition was dismissed. [Mohd. Layeek v. Election Officer, 2019 SCC OnLine MP 3, dated 02-01-2019]

Case BriefsHigh Courts

Sikkim High Court: A Single Judge Bench comprising of CJ Vijai Kumar Bist, disposed of a writ petition on carefully observing that an alternative remedy under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018 is available for claiming compensation by filing a claim petition thereunder.

In the present petition, the petitioner had started to construct his house on a plot at Karthok Block, Pakyong, East Sikkim. He had constructed a protective wall in order to withstand the natural calamities. Petitioner on completion of the construction of ground floor found that all the walls of the ground floor had developed many major and minor cracks.

The Counsel for the petitioner submitted that the damaged building was assessed by the Buildings and Housing Department, Government of Sikkim for Rs 65,41,062 and he was entitled to the same from the State Authority. High Court’s order for complying with same was not adhered to which led to the filing of the contempt petition before this Court.

An additional submission was that the respondents had paid compensation to other affected persons except for the petitioner.

Thus, the Court noted the submissions of the parties and reached a conclusion by stating that the petitioner is entitled to compensation for the loss and damage suffered by him, but same cannot be awarded to him by issuing direction in this petition due to the alternative remedy available to him under the Sikkim Greenfield Airport, Pakyong (Settlement of Claims for Loss and Damages) Act, 2018. The writ petition was accordingly disposed of. [Hantey Gyatso Kazi v. State of Sikkim,2018 SCC OnLine Sikk 233, dated 15-11-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Rajiv Sahai Endlaw, J. rejected a petition filed a father against the order of Principal Judge (Family Courts) whereby he was directed to pay monthly maintenance to his daughter.

The petitioner was directed to pay a sum of Rs 11,000 as litigation expenses and Rs 10,000 as interim maintenance to his daughter every month. Aggrieved thereby, he preferred the present petition. The Court referred to Manish Aggarwal v. Seema Aggarwal2012 SCC OnLine Del 4816 wherein it was held that Section 24 to 27 of the Hindu Marriage Act, 1955 was appealable under Section 19(6) of the Family Courts Act, 1984.

It was held by the High Court that the reasons which prevailed in Manish Aggarwal for holding interim maintenance under Section 24 HMA to be appealable under Section 19(1) of the Family Courts Act equally apply to grant of interim maintenance under Section 20 of Hindu Adoption and Maintenance Act, 1956. Furthermore, once the legislature has prescribed a remedy of appeal, the principle that Writ Court should abstain from exercising jurisdiction when an alternative remedy is available comes into play. In light of the above, the petition was rejected. [Jayanti Prasad Gautam v. Pragya Gautam,2018 SCC OnLine Del 11535, decided on 19-09-2018]

Case BriefsHigh Courts

Kerala High Court:If there be truth in what they allege, the long arm of the law will surely reach whatever recess the crime lurks in”, pronounced Dama Seshadri Naidu, J. while holding that if an efficacious alternate remedy is available under the code or statute concerned (CrPC in this case), the complainant cannot disregard such remedy and move the writ jurisdiction of the High Court. The learned Judge spoke for himself and Antony Dominc, CJ.

The matter related to the allegations of financial irregularities by the Arc Bishop, Financial Officer and Pro-Vicar General of Diocese (a district under the pastoral care of a bishop in the Christian Church). Some members of the Diocese complained to the police regarding the matter. However, the police refused to act on such complaint filed against the Arc Bishop and priests. Aggrieved by the inaction of the police, the members filed writ petition before the High Court. A learned Single Judge allowed the writ petition and directed the police to register a crime and start investigation. The appellants preferred the instant appeal contending inter alia that the petition was not maintainable as an alternate remedy was present to the complainants under CrPC.

The Division Bench speaking through Naidu, J. noted the elementary legal principle that for a writ of mandamus to be maintained, the suitor must establish before the Court: (a) that there existed a right; (b) that it has been infringed or threatened to be infringed; (c) that the person aggrieved complained to an authority; and (d) that the authority concerned refused to act. However on facts of the case, the Court noticed that the complainant rushed to the Court posthaste, before the ink dried on the paper, as if it were. The Court found it hard to believe that there was proper demand and refusal, the essential elements for a Mandamus. Moreover, in case the police refuse to register the complaint, the aggrieved person has a remedy under Sections 154 and 156 CrPC to approach the Superintendent of Police or a Magistrate empowered under Section 190 to order an investigation. The High Court held that the complainant faltered at the first hurdle – the alternative remedy. Therefore, the Court allowed the appeal and set aside the impugned order passed by the learned Single Judge. [Fr Sebestian Vadakkumpadan v. Shine Varghese,2018 SCC OnLine Ker 1785, order dated 22-5-2018]

Case BriefsHigh Courts

Gauhati High Court: A Single Judge Bench comprising of Michael Zothankhuma, J. declined to grant relief to the petitioner under the writ petition, in light of the facts that he had an alternate remedy to approach the Educational Tribunal for settling the dispute.

The petitioner was aggrieved by non-provincialisation of his services as an Assistant Teacher in the Raisen ME School. Petitioner’s grievance was that his services were not provincialised in spite of vacant post of science teacher; whereas, Respondent 7 who was not eligible for the post, was provincialised as an Assistant Teacher. The petitioner challenged such provincialisation of the respondent as well as his non-provincialisation. Learned counsel for the respondents, on the other hand, submitted that the Government of Assam had established Educational Tribunals to adjudicate disputes between teaching and non-teaching staff of provincialised schools; therefore, the present matter should be referred to the said Tribunal.

The High Court considered the submissions made on behalf of the parties and held that the present case relates to a claim for provincialisation of the service of the petitioner vis-a-vis Respondent 7 and it was liable to be sent to the Educational Tribunal concerned. Since there was an alternative remedy present to the petitioner for resolution of the dispute, the High Court held that no relief could be granted to the petitioner under the instant writ proceedings. [Sushil Namasudra v. State of Assam, 2018 SCC OnLine Gau 308, order dated 10-04-2018]

Case BriefsHigh Courts

Karnataka High Court: While passing the order in a writ petition filed under Articles 226 and 227 of the Constitution praying to quash the order passed by the III Additional Senior Civil Judge, rejecting the application filed by the petitioner, a Single Judge Bench of BV Nagarathna, J. held that the present writ petition was not maintainable.

The petitioner assailed the abovesaid order whereby the learned Judge rejected the application filed by the petitioner under Order VII Rule 11 of CPC, 1908 in OS No. 28/11. The Court was of the opinion that as against the rejection of the said application, the petitioner had an alternative remedy of filing a Civil Revision Petition under Section 115 of CPC. In such circumstances, the petition was dismissed as not maintainable. However, liberty was given to the petitioner to file a Civil Revision Petition. [S.M. Rajasekharappa v. State of Karnataka, Writ Petition No. 49449/2013 (GM-CPC), dated 29.08.2017]