(1) wp1486-09-group IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1486 OF 2009 1. Pravin S/o Prabhakarrao Pande, Age : 28 years, Occu.: Agriculture, R/o Sahyadri Nagar, Sailu, Taluka : Sailu District : Parbhani 2. Dnyaneshwar S/o Bhimrao Mahajan Age : 40 years, Occu.: Service, R/o Sahyadri Nagar, Sailu, Taluka : Sailu District : Parbhani 3. Sow Shobha w/o Uttamrao Kotalwar Age : 45 years, Occu.: Household, R/o Sahyadri Nagar, Sailu, Taluka : Sailu, District : Parbhani 4. Sow Pushpa Ramrao Ghayal Age : 33 years, Occu.: Household R/o Sahyadri Nagar, Sailu Taluka : Sailu District : Parbhani 5. Krishna S/o Vishnupant Pade Age : 50 years, Occu.: Service R/o Sahyadri Nagar, Sailu, Taluka : Sailu District : Parbhani PETITIONERS VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS (2) wp1486-09-group WITH WRIT PETITION NO. 1066 OF 2010 1. Mahadeo Kondibhau Magar, Age : 29 years, Occu.: Service, R/o Gogalgaon, Tq. Manwat, District Parbhani 2. Ganesh Tukaram Magar, Age : 28 years, Occu.: Service, R/o Sonna Tq. Sailu, District Parbhani 3. Mrs. Damayanti w/o Nilkanth Magar, Age 36 years, Occu.: Household R/o Golegaon, Tq. Manwat Dist. Parbhani 4. Ganesh Sahebrao Magar, Age : 34 years, Occu.: Agri., R/o Gogalgaon, Tq. Manwat, District Parbhani 5. Parmeshwar Laxman Magar, Age : 35 years, Occu.: Agri., R/o Gogalgaon Tq. Manwat, Dist. Parbhani PETITIONERS VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS (3) wp1486-09-group WITH WRIT PETITION NO. 1065 OF 2010 1. Kailas Pralhadrao Solanke Age : 40 years, Occu.: Service, R/o Sailu, Tq. Sailu District Parbhani 2. Kiran Dattatray Borade Age : 38 years, Occu.: Agri., R/o Sailu, Tq. Sailu District Parbhani 3. Annasaheb Janardhan Gaikwad, Age : 37 years, Occu.: Agri., R/o Sailu, Tq. Sailu District Parbhani 4. Ananda Tatyarao Magar, Age: Major, Occu.: Agri., R/o Sailu, Tq. Sailu, District Parbhani 5. Babasaheb Munjaji Lipne, Age : Major, Occu.: Agri., R/o Sailu, Tq. Sailu District Parbhani 6. Sow Usha Narayanrao Kharat Age : Major, Occu.: R/o Jawali Jiwaji Tq. Sailu, District Parbhani 7. Sanjivkumar Shriramrao Sakhare Age : Major, Occu.: Agri., R/o Ladnandra Tq. Sailu, District Parbhani 8. Pandurang Babasaheb Gange, Age : 35 years, Occu.: Service R/o Lad Nandra Tq. Sailu District Parbhani 9. Sarita Shivaji Magar, Age : 35 years, Occu.: Household R/o Gogalgaon, Tq. Sailu District Parbhani PETITIONERS (4) wp1486-09-group VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 202 OF 2010 1. Ganesh S/o Bhagwanrao Karhade Age : 40 years, Occu.: Service R/o Sailu, Tq. Sailu District Parbhani 2. Kisanrao Sakharam Lande, Age : 55 years, Occu.: Agri., R/o Sailu, Tq. Sailu District Parbhani 3. Sunil S/o Govindrao Taur, Age : 38 years, Occu.: Agri., R/o Sailu, Tq. Sailu District Parbhani 4. Sow Chhaya Babulalji Shriwastav Age : 35 years, Occu.: Household R/o Sailu Tq. Sailu, District Parbhani 5. Shri Manikrao Namdero Satpute Age : 60 years, Occu.: Ex Serviceman R/o Sailu, Tq. Sailu District Parbhani 6. Sow Anjali W/o Vithalrao Kalwane Age : 36 years, Occu.: Service R/o D.K. Builders Colony, Sailu Tq. Sailu, District Parbhani (5) wp1486-09-group 7. Sow. Sanjavani Ganesh Dattatry Makode Age : 60 years, Occu.: Household R/o Sailu, Tq. Sailu District Parbahni 8. Rajesh S/o Laxman Tangde Age : 35 years, Occu.: Service, R/o Sailu, Tq. Sailu District Parbhani 9. Sow Anita Vishwasrao Deshmukh, Age : 40 years, Occu.: Household R/o Sailu, Tq. Sailu District Parbhani PETITIONERS VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 1067 OF 2010 Subhash Annasaheb Solanke Age 42 years, Occu.: R/o Sailu, Tq. Sailu, District Parbhani PETITIONER VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its (6) wp1486-09-group Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 1468 OF 2010 Sow Lata Sheshrao Potphade Age : 34 years, Occu.: Service, R/o Shrisala, Tq. Parali Vaijinath District Beed PETITIONER VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 1629 OF 2010 Sow Neeta w/o Ravindra Keware Age 35 years, Occu: Service R/o Sailu, Taluka Sailu District : Parbhani PETITIONER VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, (7) wp1486-09-group Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 1638 OF 2010 1. Shri Anant S/o Madhukarrao Kulkarni Age : 32 years, Occu.: Agri., R/o Moregaon, Tq. Sailu, District Parbhani 2. Shri Sandeep S/o Sudhakarrao Poul Age : 35 years, Occu.: NIL, R/o Parbhani Taluka and District Parbhani PETITIONERS VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 1761 OF 2010 1. Santosh S/o Tukaram Kale, Age : 28 years, Occu.: Agri., R/o. Dhengli Pimpalgaon, Tq. Selu, Dist. Parbhani 2. Ravi S/o Sudhakar Mahajan, Age : 29 years, Occu.: Business, R/o. Chikalthana (Bk.), Tq. Selu, Dist. Parbhani 3. Prabhakar S/o Tukaram Kale Age : 26 years, Occu.: Agri., Dhengli Pimpalgaon, Tq. Selu, (8) wp1486-09-group Dist. Parbhani 4. Dnyaneshwar S/o Janardhan Kashte Age : 23 years, Occu.: Mechanic R/o. Rohina (Kajali), Tq. Selu, Dist. Parbhani 5. Ganesh S/o Bansidhar Lipne, Age : 45 years, Occu.: Agri., R/o Nirwadi, Tq. Selu, Dist. Parbhani PETITIONERS VERSUS 1. The Union of India, Through Secretary, Banking and Ministry of Company Affairs, Mantralaya, New Delhi 2. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS WITH WRIT PETITION NO. 2889 OF 2010 Bhujang S/o Mahadevrao Thore Age : 35 years, Occu.: Service, R/o Devnandra, Pathri, Tq. Pathri, Dist. Parbhani PETITIONER VERSUS 1. Diwan Housing Finance Corporation Parbhani Branch, through its Authorized Officer, K. Anand Wasdhan Ramkrishnagar, Mantri Complex, Vasmat Road, Prabhani RESPONDENTS (9) wp1486-09-group .... Mr. A.S. Deshmukh, Advocate for the petitioners Mr. Amol Gandhi, Advocate for the petitioners. Mr. Alok Sharma, Assistant Solicitor General, for the respondent/Union of India. Mr. S.S. Rathi, Advocate for the respondent no.2 Respondent no. 3(Dike Builders and Land Developers) deleted in all Writ Petitions as per Court's order dated 14.6.2011 .... CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATED : 11th JULY, 2011 ORAL ORDER : 1. The petitioners have approached this Court contending that the notice issued by the Bank, dated 10th December, 2008 should be stayed as their properties are affected by this notice. The petitioners, it appears, have purchased houses and properties from the respondent No. 3, who has apparently defaulted on a loan obtained from the Diwan Housing Finance Corporation, Parbhani. They contend that they have no privity of contract with the Financial Institution which is the secured creditor and, therefore, according to the petitioners, they are entitled to maintain the present petition against a notice which has been (10) wp1486-09-group issued under section 13 (4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “the Securitisation Act”). 2. The learned advocate appearing for the petitioners has submitted that without a notice being issued under section 13 (2) of the Securitisation Act by the secured creditor, a notice under section 13 (4) cannot be issued. His second submission is that under section 149 of the Maharashtra Land Revenue Code, 1966 (for short, “the MLR Code”), any purchase or sale of the property must be notified to the revenue authorities of the district within which the property is situated. According to him, the failure to do so would result in vitiating the notice challenged. The third submission is that the petitioners should not be relegated to the alternate remedy under the Securitisation Act as the constitutional right of the petitioners with respect to the right to property is affected and, therefore, they can invoke this Court's extraordinary jurisdiction under Articles 226 and 227 of the Constitution. (11) wp1486-09-group 3. The notice issued to the petitioners is under section 13 (4) of the Securitisation Act. Under section 17 of the Securitisation Act, any person aggrieved by any measures referred to in sub- section (4) of section 13 taken by the secured creditor may apply to the Debt Recovery Tribunal within 45 days from the date on which such measures are undertaken, for redressal of the person's grievance. In the present case, the petitioners, in our opinion, ought to have invoked that remedy rather than approaching this Court. 4. In the case of “United Bank of India vs. Satyawati Tondon and others” (2010) 8 S.C.C. 110, the Supreme Court, while dealing with a similar case as to whether the High Court should invoke its powers under Article 226 of the Constitution when a remedy is available to the aggrieved person under section 17 of the Securitisation Act, has observed thus : “42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance (12) wp1486-09-group 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 the 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 and 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 dues, etc., the High Court must keep in (13) wp1486-09-group mind 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. 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 (14) wp1486-09-group 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 rederessal of his grievance. 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 (15) wp1486-09-group 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 v. Antarim Zila Parishad, Whirpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgements, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order." After considering its earlier judgements in several matters, the Court has observed thus : "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.” [Emphasis supplied] (16) wp1486-09-group 5. In our opinion, therefore, the submissions of the learned advocate for the petitioners cannot be accepted. The notice under section 13 (2) of the Securitisation Act is to be issued to the Borrower. According to the petitioners, they are not borrowers and, therefore, the question of issuance of notice to them does not arise. They have been issued notice under section 13 (4) of the Securitisation Act which can be challenged by them under section 17 of the Securitisation Act. Further more, we are not required to consider the submission of the learned advocate for the petitioners with respect to the provisions of the MLR Code. This contention has not been raised in the present petitions. Though the right to property is a constitutional right, as submitted by the learned advocate for the petitioners, this Court's powers under Article 226 cannot be invoked in the facts and circumstances of the present case when there is a statutory remedy available to the petitioners to safeguard that right. In the circumstances, the petitions are rejected, relegating the petitioners to avail of the alternate (17) wp1486-09-group remedy under section 17 of the Securitisation Act. 6. The status quo granted earlier shall continue for a period of four weeks. 7. In view of rejection of the writ petitions, all the civil applications filed therein do not survive and hence, stand dismissed accordingly. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] NPJ/wp1486-09-group