IN THE HIGH Court OF JUDICATURE AT MADRAS DATED : 13.09.2010 C O R A M THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr. JUSTICE B.RAJENDRAN W.P. No. 13459 of 2010 and M.P. No. 1 of 2010 M. Ethiraj .. Petitioner Versus 1. The Hon'ble Debt Recovery Tribunal-II Spencer Buildings Chennai – 600 002 2. The Indian bank Kothwal Bazaar Branch rep. by its Asst. General Manager No.136, Audiappa Street Chennai – 600 001 3. M/s. Surya Chandra Productions No.37/6, Bagirathi Ammal Street T. Nagar, Chennai – 600 017 4. K.S. Raja Ravindran 5. R. Chandrasekaran 6. D. Kothandan .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Prohibition Prohibiting the first respondent herein from passing orders in O.A.No. 73 of 2004 pending on the file of the Debt Recovery Tribunal-II, Chennai, until the disposal of the appeal M.A. No. 353 of 2010 by the Debt Recovery Appellate Tribunal, Chennai For Appellant : Mr. K. Moorthy For Respondents : Mr. M.V. Chandran for R2 Mr. Antony Selvan for R6 R3 to 5 not ready ORDER (Order of the Court was made by R. Banumathi, J) This writ petition is filed by the petitioner praying for a Writ of Prohibition to prohibit the first respondent/Debt Recovery Tribunal-II from passing orders in O.A.No. 73 of 2004 on its file till the disposal of the appeal in M.A. No. 353 of 2010 on the file of Debt Recovery Appellate Tribunal, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. We have heard Mr. K. Moorthy, learned counsel for the petitioner, Mr. M.V. Chandran for the second respondent/Bank and Mr. Antony Selvan for the sixth respondent. 3. The brief facts of the case are that Arulmighu Kolavizhi Amman Temple, Mylapore, Chennai – 4 filed a civil suit in C.S. No. 914 of 1989 before this Court against one Dhakshinamurthy and his brothers for recovery of amount. Though the petitioner was an occupant of the temple land, he has not been shown as defendant in the suit. After contest, the suit was decreed whereby a decree of declaration was issued in favour of the temple on 20.02.2009. In the meantime, the sixth respondent seems to have obtained a power of attorney from Dhakshnamurthy and his brothers and claimed himself to be the owner of the above said lands and on furnishing the temple property as security on behalf of the respondents 3 to 5, he obtained a loan of Rs.5,00,000/- from the second respondent bank. Aggrieved by the non-payment of the loan amount, the second respondent bank filed O.S. No. 3675 of 1999 on the file of the VII Additional Judge, City Civil Court, Chennai and obtained an exparte decree on 29.10.2001 for a sum of Rs.9,48,777.50 together with interest from the date of the plaint namely 28.10.1995 till the date of realisation along with costs of Rs.25,061.50. As the loan was not repaid and the jurisdiction came to be vested with the Debt Recovery Tribunal, Chennai, the bank has filed O.A. No. 73 of 2004 before the first respondent/Tribunal for issuance of a recovery certificate and sale of the property. The petitioner, claiming that the mortgaged property is the property belonged to Arulmighu Kolavizhi Amman Temple, Mylapore, Chennai and that the petitioner is one of the tenants under the temple land, has filed I.A. No. 762 of 2009 in O.A. No. 73 of 2004 before the first respondent/Tribunal to delete the property leased out to him from the purview of recovery proceedings. The said I.A. No. 762 of 2009 was dismissed by the Tribunal on 13.04.2010. Aggrieved by the same, the petitioner has filed M.A. No. 353 of 2010 before the Debt Recovery Appellate Tribunal and the same is pending. 4. The grievance of the petitioner is even when the appeal preferred by him before the Debt Recovery Appellate Tribunal in M.A. No. 353 of 2010 is pending, the first respondent/Debt Recovery Tribunal, Chennai is proceeding to dispose of the O.A. No. 73 of 2004 and trying to issue recovery certificate. 5. The learned counsel for the petitioner submitted that if the first respondent/Debt Recovery Tribunal proceeds to dispose of O.A. No. 73 of 2004, the petitioner will be subjected to much prejudice and his right in the leased out property will be defeated. 6. Inasmuch as the appeal filed by the petitioner before the competent authority namely Debt Recovery Appellate Tribunal in M.A. No. 353 of 2010 is pending, the writ petition filed by the petitioner cannot be entertained. If really the petitioner wants to prohibit the first respondent/Debt Recovery Tribunal, Chennai from proceeding with O.A. No. 73 of 2004, it is for the petitioner to take out appropriate application before the Debt Recovery Appellate Tribunal seeking for for appropriate relief. In exercise of jurisdiction https://hcservices.ecourts.gov.in/hcservices/ under Article 226 of The Constitution of India, this Court cannot prohibit the first respondent/Tribunal from proceeding with O.A. No. 73 of 2004. 7. In the decision of the Honourable Supreme Court reported in (United Bank of India and Satyawati Tondon and others) III (2010) BC 495 (SC), the Honourable Supreme Court expressed serious concern over invoking of Article 226 of The Constitution of India, which results in serious adverse impact on the rights of the bank and other financial institution to recover the dues. The Honourable Supreme Court also observed that when there is statutory remedy available, the jurisdiction under Article 226 of The Constitution of India cannot be invoked. In para Nos. 17 and 18, it was held thus:- 18. ...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. 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 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. 18. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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. 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 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 v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order. (underlining added). 8. In the said Judgment of the Honourable Supreme Court, in para No.25, the decision of the Supreme Court reported in Raj Kumar Shivhare vs. Assistant Director, Directorate of Enforcement and Another (2010) 4 SCC 772 was referred to wherein it was held that when a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. 9. Therefore, following the decision of the Honourable Supreme Court mentioned supra, we are of the considered view that the writ petition filed by the petitioner is not maintainable. However, the petitioner is entitled to seek further remedy before the Debt https://hcservices.ecourts.gov.in/hcservices/ Recovery Appellate Tribunal, Chennai for appropriate relief where the appeal filed by him in M.A. No. 353 of 2010 is pending. If any such application is filed, it is for the Debt Recovery Appellate Tribunal to consider it on merits and in accordance with law. 10. In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rsh To 1. The Presiding Officer Debt Recovery Tribunal-II Spencer Buildings Chennai – 600 002 1 cc To Mr. K. Moorthy, Advocate, SR.67009 1 cc To Mr.M.V. Chandran , Advocate, SR.66986 WP No. 13459 of 2010 nsm(co) pmk.24.9.2010 https://hcservices.ecourts.gov.in/hcservices/