1 hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4966 OF 2010 Mr. Kamlesh Gandhi ... Petitioner V/s. Union Bank of India and Ors. ... Respondents Mr. G.S. Godbole i/by Ms. Khushbu Prabhu for Petitioner. Mr. H. Toor i/by M/S. N.N. Amin & Co. for R. No. 1. CORAM : D.D. SINHA & MRS MRIDULA BHATKAR, JJ. DATED : JULY 14, 2010. P. C.: Heard counsel for the Petitioner and Respondent no.1. 2. This writ petition is directed against the order dated 9.6.2010 passed by the Debt Recovery Appellate Tribunal (DRAT), Mumbai. The counsel for the Petitioner has submitted that the DRAT has decided the Original Application and held that the loan amount due and payable by the petitioner is Rs.40,78,77,713.55. The DRAT reduced the amount of statutory deposit to 25% of the debt and directed the petitioner to deposit Rs.10,19,69,428/-. 3. The counsel for the Petitioner has submitted that the issue in question 2 pertains to applicability of provisions of SARFAESI Act to the agricultural lands in view of section 31(i) of the SARFAESI Act. It is submitted that though DRAT disposed of the Original Application by holding that the lands in question are not agricultural lands and therefore, section 31(i) of the SARFAESI Act has no application in case of the Petitioner. It is contended that since the issue pertains to the applicability of the provisions of the Act itself and the Petitioner is going through financial crisis, this court should show indulgence and reduce the statutory deposit less than 25% as has been ordered by the D.R.A.T. to be deposited by the petitioner. 4. It is alternatively contended by the counsel for the petitioner that the respondent-Bank may be directed to proceed with the auction of the secured assets, except the agricultural land of the petitioner. The consideration the Bank will receive after auctioning the secured assets, 25% of the amount out of the said consideration can be treated to be as a statutory deposit which will render the appeal filed by the petitioner under section 18 maintainable. 5. The learned counsel for the petitioner further contended that the power of this court under Article 226 of the Constitution is unfettered and in the given case for the adequate reasons the same can be exercised by this court. In order to substantiate its contentions, reliance is placed on the decision of the Apex Court in State of Tripura Versus Manoranjan Chakrabotry in Civil Appeal No. 4638 of 1990 decided on 16th November, 3 2000. 6. The learned counsel for the Bank has pointed out to us that the Bank on earlier occasion issued auction notice dated 8.4.2010 scheduling the auction on 20.4.2010. On 20.4.2010 the Bank had received two bids one from Sargam Enterprises for Rs.8,11,00,000/- for the land and building and Rs. 10,00,00,000/- for the Plant and Machinery and the other from Mehek Overseas Private Limited for Rs.15,55,00,000/- for the land and building and Rs. 10,00,00,000/- for Plant and Machinery. It is contended that the outstanding dues determined by D.R.A.T. are Rs.40,78,00,000/-. It is therefore, contended that the offers received by the Bank in respect of the secured assets were much less than the outstanding dues required to be recovered by the Bank from the Petitioner and therefore, the suggestion made by the learned counsel for the petitioner cannot be accepted. 7. The counsel for the Respondent Bank has further contended that in the instant case, Petitioner has not disputed the liability of the outstanding dues. However, the only reason which was canvassed by the Petitioner before the D.R.A.T. for not depositing 25% amount was that the Petitioner was going through financial crisis. It is submitted that this reason is not adequate reason to show indulgence by this court by exercising power under Article 226 of the Constitution of India. 4 8. Considered the contentions of the respective parties. Perused the order impugned as well as decision of the Supreme Court cited by the learned counsel for the Petitioner. D.R.A.T. in Para 5 of the impugned order has observed thus: "Admittedly, the securities are more than the alleged agricultural land. Priviso to section 18 lays down that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty percent of the amount of debt due from him, as claimed by the secured creditors or determined by the DRT, whichever is less and provided further that the Tribunal can reduce the amount to not less than twenty five percent of debt for the reasons to be recorded. Therefore, the appellants have to deposit minimum 25% of the amount claimed even if it is accepted for the moment that the financial condition of the appellants is not good and the appellants cannot be required to deposit 50% of the amount claimed. They must deposit minimum 25% of the amount claimed." 9. In view of the above referred observations made by the tribunal, it is evident that whatever tribunal was entitled to do in law, the tribunal did and therefore, we cannot find fault with the impugned order. 5 10. The Petitioner has contended that this Court can exercise power under Article 226 of the Constitution and should show indulgence in the case in hand, since the Petitioner is not in a position to make statutory deposit as directed by the D.R.A.T. It is further contended that the financial condition of the petitioner is poor and therefore the Petitioner is unable to deposit the said amount and therefore, this is a fit case where this court should exercise power under Article 226 of the Constitution particularly because the issue of applicability of SARFAESI Act to the security created in the land is involved. It is difficult for us to agree with the said contentions canvassed by the learned counsel, in view of the observations made by the Apex Court in Para 4 of the decision cited by the learned counsel for the petitioner. The observations made by the Apex court in Para 4 reads thus : "For the reasons contained in the said decisions, we hold that the impugned provisions are valid, it is, of course, clear that if gross injustice is done and it can be shown that for good reason, the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against the 6 availability of the writ jurisdiction should dispel any doubt which a citizen has against a high-handed or palpable illegal order which may be passed by the assessing authority." 11. Perusal of the above referred observations made by the Apex Court shows that in case of gross injustice and for good reasons, the Court can interfere, notwithstanding there is alternative remedy available in law by way of an appeal. In the instant case, applying the same law to the facts of the case on hand, we do not find good reason to exercise jurisdiction under Article 226 of the Constitution. The only reason given by the petitioner before the DRAT was that the petitioner is going through financial crisis and was unable to make payment of statutory deposit even of 25% of the debt. 12. The learned counsel for the Petitioner cited a decision of the Apex Court in Godrej Sara Lee Limited v. Assistant Commissioner and another [(2009) 14 SCC 338]. However, in our view, the law declared in the said decision does not further the case of the petitioner. 13. In so far as the suggestions made by the counsel for the Petitioner that the Bank should be directed to proceed with the auction in view of the assets out of the agricultural land, in view of the above referred facts, particularly in view of the offers which were received by the Bank earlier, it is evident that the amount outstanding against the Petitioner is much more than the offers 7 received by the Bank for the entire secured assets of the Petitioner, therefore, cannot be accepted. 14. For the reasons stated hereinabove, no case made out for indulgence. Hence, writ petition disposed of. (D.D. SINHA, J.) (MRS. MRIDULA BHATKAR,J.)