Bidulata Maharana Vs. Bank of India and Two ors. - Court Judgment

B.S. Chauhan, C.J.

1. This Writ Petition has been filed for quashing the show cause notice under Section 13(2) of the Securitization and Reconstruction of financial Assets & Enforcement of Security Interest Act, 2002 (in short, the 'Securitization Act') and other consequential reliefs. However, record of the case reveals that in respect of same subject matter the present Petitioner has filed a suit being C.S. No. 179 of 2008 (Bidulata Maharana v. Bank of India) in the Court of Civil Judge (Junior Division), Bhubaneswar. The said suit is still pending. An application for interim relief, i.e. LA. No. 247 of 2008 has also been filed which is still pending consideration before the said Court. In case the said suit is decreed, Petitioner would get the reliefs claimed therein. Therefore, question does not arise as to whether at such stage particularly when the suit is pending, this Court should entertain the Writ Petition.

2. In K.R. Rashid & Sons v. Income- tax Investigation Commission and Ors. : [1954]25ITR167(SC) , a Constitution Bench of the Supreme Court considered the issue involved herein that when the remedy under Section 8(5) of the Taxation of Income-tax (Investigation Commission) Act, 1947 has been pending whether the High Court could entertain the Writ Petition. The Hon'ble Apex Court held that a person may choose/elect where it will proceed with the alternative remedy or with the Writ Petition, but both cannot be pursued simultaneously.

The Court held as under:

For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been bought to our notice that the Appellants before us have already availed themselves of the remedy provided for in Section 8(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that it would not be proper to allow the Appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere with the orders made by the High Court.

3. In S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. : AIR2004SC2421 , the Court held that mere availability of alternative forum for appropriate relief does not impinge upon the jurisdiction of the Writ Court to deal with the matter, itself if it is in a position to do so on the basis of the affidavits filed. 'If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the Writ Petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court.'

4. In Jai Singh v. Union of India and Ors. : [1977]2SCR137 the Supreme Court considered a case wherein the Petitioner filed a Writ Petition which was dismissed in limine on the ground of availability of alternative remedy. Subsequently, he filed a suit agitating the same subject matter and also approached the Supreme Court against the High Court order. The Apex Court held that a person cannot be permitted to pursue two parallel remedies in respect of the same subject matter at the same time. The Apex Court refused to examine the issue observing that party can pursue the remedy in the pending suit.

5. In Bombay Metropolitan Region Development Authority, Bombay v. Gokak Volkart Ltd. and Ors. : (1995)1SCC642 , the Petitioner therein had filed a Writ Petition during the pendency of the appeal before the Statutory Authority. The Hon'ble Apex Court held that such a writ was not maintainable.

6. Thus, in view of the above, the law can be formulated that public policy demands that a person has a right to choose/elect the forum for redressal of his grievance, but he cannot be permitted to approach two forums in respect of the same subject matter simultaneously.

7. There may be a case of forum hunting that a party who filed a suit, may not be able to get the interim relief. It may abandon the remedy before the Civil Court and approach the Writ Court. Thus, it will amount to abuse of process of the Court by forum hunting.

8. In view of the above, as the Petitioner has already chosen/elected to approach the Civil Court and filed the suit. The suit is still pending. Merely because interim relief has not been granted in her favour till now, this Court cannot entertain her Writ Petition in respect of the same subject matter.

9. The petition is dismissed with liberty to the Petitioner to pursue the suit before the Civil Court.

B.N. Mahapatra, J.

10. I agree.