State Bank of India Vs. Shri Shyamji Sales and ors. - Court Judgment

Excerpt:
civil - maintainability - writ - articles 226 and 227 of constitution of india and section 20 of recovery of debts due to banks and financial institutions act, 1993 - appellant advanced loan to respondents - respondents defaulted in payment thereof - appellant filed suit for recovery in civil court - matter was transferred to debt recovery tribunal - tribunal passed judgment in favour of appellant - respondent assailed judgment of tribunal under article 226/227 of constitution - single judge allowed petition - hence, present letter patent appeal challenging order of single judge - held, according to judicial principle petition under article 226 and 227 of constitution can be entertained generally after petitioner has exhausted all available remedy - in instant case respondents had alternative remedy under section 20 of act of 1993 to assail order of tribunal - respondents did not exhaust said remedy - hence, grievances of respondents should not have been entertained directly by single judge through petition under articles 226 and 227 of constitution - order of single judge accordingly set aside - appeal allowed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 1454 of 2000 decided on 26-4-2000). in these decisions, it has been held that remedy under article 227 constitution of india being discretionary, the court may refuse to grant it where alternative remedy equally efficacious and adequate existed unless there are good grounds to depart from well known practice. in my opinion remedy under article 227 of the constitution of india being discretionary the high court may refuse to grant it where there exists an alternative remedy equally efficacious and adequate unless there are good grounds to depart from well known practice. however, that is permissible in exceptional cases.bhawani singh, c.j. 1. this letters patent appeal is directed against order of learned single judge dated 13-10-1999 passed in w.p. no. 2425 of 1999 whereby judgment in t.a. no. 47 of 1998 dated 21-4-1999 has been set aside. 2. shortly stated, appellant filed civil suit for recovery of loan of rs. 10,30,991.00 against respondents when it was not paid. the civil suit was transferred to debts recovery tribunal, jabalpur for adjudication. by judgment dated 21-4-1999, recovery certificate for the amount of rs. 10,30,991.00 carrying interest at the rate of 21.5% with quarterly interest along with other reliefs. has been issued by the debts recovery tribunal. instead of challenging this judgment, dated 21-4-1999 before the appellate tribunal under section 20 of the recovery of debts due to banks and financial institutions act, 1993 (for short act of 1993). the judgment-debtor sought to challenge the same in this court through writ petition no. 2425 of 1999. perusal of the judgment passed in the ease discloses that the petitioner/judgment debtor has raised number of objections to the judgment passed by the debts recovery tribunal. learned single judge considered these grievances and allowed the writ petition, remanding the case to the debt recovery tribunal permitting the judgment debtor to file written statement against payment of cost of rs. 10,000,00 to the decree holder. after this judgment, appellant filed letters patent appeal no. 461 of 1999. it was withdrawn on 31-1-2000 with liberty to file fresh letters patent appeal if occasion arose. accordingly, review petition was filed which has been disposed of by order dated 31-1-2000. as such, the decree holder has filed this letters patent appeal in this court. learned counsel for parties were heard. record perused. 3. the main question for consideration is the contention raised by shri mehandiratta, learned counsel for decree-holder that this court should not have exercised jurisdiction under articles 226/227 constitution of india since adequate andefficacious remedy is available to judgment-debtor under section 20 of the act of 1993. with a view to support the submission, learned counsel placed reliance on decisions in sushil kumar jaiswal v. bank of india 1996 isj (banking) 464, bharat ispat udyog v. presiding officer. 1998 isj (banking) 11, sandip singh sandhu v. debt recovery tribunal, 1998 isj (banking) 655, shoes east limited v. allahabad bank, (1998) 2 bc 250, radha ravi v. indian bank, alwarpet branch, (1998) 2 bc 690, unified agro industries (india) limited v. debts recovery tribunal, new delhi, air 2000 delhi 394), ganga narayan mishra v. state bank of india, (2001) 1 mplj 27 and m.p. enterprises v. punjab national bank (w.p. no. 1454 of 2000 decided on 26-4-2000). in these decisions, it has been held that remedy under article 227 constitution of india being discretionary, the court may refuse to grant it where alternative remedy equally efficacious and adequate existed unless there are good grounds to depart from well known practice. plenary power under articles 226/227 constitution of india is not intended to circumvent statutory procedure and statutory remedies by not invoking the remedy of appeal before the appellate tribunal, ft cannot be said that the remedy under section 20 of the act of 1993 is not an adequate remedy. we are completely in agreement with the view taken by the courts in the decisions referred to above by learned counsel for the appellant. for arriving at this conclusion, prasad, j. has referred to decision of supreme court in whirlpool corporation v. registrar of trade marks, mumbai (1998) 8 scc 1 : (air 1999 sc 22), paragraph 15 of which reads as under ; 'under article 226 of the constitution, the high court, having regard to the facts of the ease, has a discretion to entertain or not to entertain a writ petition. but the high court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the high court would not normally exercise its jurisdiction. but the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies. namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings arc whollywithout jurisdiction or the vires of an act is challenged. there is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.' in a. v. venkateshwaran v. r. s. wadhwani, air 1961 sc 1506, the apex court has said in paragraph 9 that: 'we see considerable force in the argument of the learned solicitor-general, we must, however, point out that the rule that the party who applies for the issue of a high prerogative writ, should before he approaches the court, has exhausted the other , remedies open to him under the law, is not one which bars the jurisdiction of the high court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion.' then, in paragraph 6 of the judgment, it is said that : '6. true it is that power of this court under articles 226 and 227 of the constitution of india has been preserved under section 18 of the act, but notwithstanding the same plenary power of this court under articles 226 and 227 of the constitution of india cannot be curtailed by any enactment. in my opinion remedy under article 227 of the constitution of india being discretionary the high court may refuse to grant it where there exists an alternative remedy equally efficacious and adequate unless there are good grounds to depart from well known practice. existence of an alternative remedy may not be an absolute bar to the jurisdiction of this court, but it is a rule which has been laid for exercise of discretion. in my considered opinion, the plenary power under articles 226 and 227 of the constitution of india is not intended to circumvent statutory procedure and in a case where statutory remedies are available by invoking the remedy of appeal before the appellate tribunal, this court would not overlook the existence of alternative remedy and exercise its discretion.' dealing with the grievance of the petitioner in the case that under the act of 1993, appellant is required to deposit 75% of the adjudicated amount before his appeal is entertained, therefore, the remedy of appeal is ill-suited and onerous, learned judge hassaid in paragraphs 7 and 8 that : '7. learned counsel for the petitioner in order to over come this difficulty submits that the remedy of appeal available to the petitioner is ill-suited as the remedy is onerous because the petitioner is required to deposit seventy-five per cent of the adjudicated amount before his appeal can be entertained. as such, according to the learned counsel this is a fit case in which writ petition be not thrown out on the ground of existence of the alternative remedy. learned counsel points out that a learned single judge of this court by order dated 13-10-1999 passed in w.p. no. 2425 of 1999 (vishal kumar mahawar v. the state bank of india) has set aside the final judgment delivered by the tribunal in exercise of its jurisdiction under article 227 of the constitution of india. 8. condition of deposit of seventy-five per cent of the adjudicated amount before the appeal could be entertained by the appellate tribunal is one of the conditions which the parliament in its wisdom has laid. in case the amount to be deposited is on the higher side, remedy is to appeal to the parliament. however, it is to be borne in mind that the act provides for recovery of the dues of public sector banks and financial institution, which are custodian of public funds and no individual is benefited. basic object underlying pre-deposit is to counter-act dilatory tactics adopted by recalcitrant litigants. further provision to section 21 of the act confers discretion on the appellate tribunal to waive or reduce the amount to be deposited. in such circumstances remedy of appeal cannot be said to be inefficacious or ill suited.' 4. shri ashok agrawal, learned counsel for respondents brought to our notice decision of apex court in industrial credit and investment corporation of india limited v grapco industries limited, air 1999 sc 1975 and contended that jurisdiction of this court to interfere in the matter under article 227 constitution of india is not taken away, therefore, the learned single judge has rightly exercised the jurisdiction arid having done so, case for interference is not made out. it is also contended that having exercised jurisdiction under article 227 constitution of india, letters patent appeal is not maintainable. there is no dispute with respect to the question that this court canexercise jurisdiction under article 227 constitution of india with respect to debts recovery tribunals. however, that is permissible in exceptional cases. so far as second objection is concerned, perusal of writ petition would disclose that it has been filed under articles 226/227 constitution of india and not under article 227 alone. facts constitute it a petition under article 226 of the constitution and not under article 227 alone. 3im-ply because the judgment mentions exercise of jurisdiction under article 227 constitution of india, that would not be the end of the matter. statement of facts and the reliefs sought in the petition are to be considered to find out whether the petition is under article 226 or under article 227 of the constitution of india. we find that it is a petition under articles 226/227 constitution of india. 5. further, one glaring fact in this case is the final adjudication of the dispute by the debts recovery tribunal. decree has been passed for specific amount, certificate to that effect has been issued. in such a case, simply because the judgment-debtor has to pay 75% of the decretal amount before appeal is entertained, it would not vest him with the discretion to approach this court and challenge the final order of the debts recovery tribunal. after all, the act of 1993 has been enacted by the parliament to provide for quick remedy for realisation of huge loans taken by persons from financial institutions and banks when the existing modes of recovery were not found adequate. 6. therefore, we have no hesitation in coming to the conclusion that the writ petition in this case, against the order of debts recovery tribunal, cannot be entertained. the judgment-debtor should have approached the appellate tribunal under section 20 of the act of 1993 in case he had any grievance against the order of the debts recovery tribunal. 7. consequently, the appeal is allowed, judgment of the learned single judge dated 13-10-1999 passed in w.p. no. 2425 of 1999 is set aside. costs on parties.