Bombay High Court (HC) directed to re-adjudicate and to reconsider the application filed by the petitioner against impugned communication of the respondent bank in a time bound manner and to set a time table accordingly.
The Coram of Justice Nitin Jamdar and Justice Gauri Godse, while entertaining the Writ Petition filed by Abhishek P. Tirewala. observed that the legislative intent emphasised by the Hon’ble Supreme Court in various decisions when the HC is called upon to exercise power under Article 226 of the Constitution of India to grant relief to the Petitioner that too when remedy before Debt Recovery Tribunal (DRT) is now available.
Under Section 14 of the Secularisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the “SARFAESI Act”), the Respondent-Bank commenced legal action.
A public notice was made regarding the sale of a shop cum godown property. The proposal was made by the petitioner. There was an auction. Petitioner made an earnest money deposit of Rs. 13,75,000.
The petitioner was declared as successful bidder for the sum of Rs. 1,53,00,000 and if the Petitioner did not make payment of 25% of the offer amount less Earnest Money Deposit amount within two days and balance amount within 15 days, the Earnest Money Deposit amount was to be forfeited. The Respondent -Bank forfeited the amount of Earnest Money Deposited by impugned communication.
The Petitioner thereafter filed a Securitisation Application in the DRT seeking for refund of the deposit. The DRT, amongst other grounds, held that it does not have jurisdiction and application was not maintainable under Section 17 of the SARFAESI Act.
Thereafter, Petitioner filed an Appeal before the Debt Recovery Appellate Tribunal. The tribunal remanded the matter to the DRT on the aspect of jurisdiction.
Further, the DRT concluded that it does not have jurisdiction to grant relief to the Petitioner and disposed of the Application. Aggrieved again, the Petitioner filed a Writ Petition.
The Bench observed an extract from the case Agarwal Tracom Pvt Ltd decided by the apex court that the HC must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
Further the coram noted the ruling of the Supreme Court in the Agarwal Tracom Pvt Ltd, “The appellant is, accordingly, granted liberty to file an application before the concerned Tribunal (DRT) under Section 17(1) of the SARFAESI Act, which has jurisdiction to entertain such application within 45 days from the date of this order. In case, if the appellant files any such application, the Tribunal shall decide the same on its merits in accordance with law uninfluenced by any of the observations made by this Court and the High Court in the impugned judgment.”
Relying on the judgment of the apex court, the Bombay HC in this case directed the DRT to decide the application within three months from today, if it is not so decided.
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