TaxTMI 
TaxTMI 
2014 (1) TMI 1342
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....orm of cash credit to the tune of Rs.739520/- which was extended to Rs.1,00,000/- under the Gramodyog Rojgar Yojna. The petitioner took guarantee of the said loan and to secure the loan she mortgaged her house being House No. A-871 Indira Nagar, Lucknow. The property of the petitioner as well as of respondent no. 3, i.e., the land admeasuring 0.386 hectare consisting boundary wall and office built thereon was also mortgaged to secure the loan and the loan was not recoverable for two years as it was exempted from interest for two years. Mr. Verma ran his brick industry successfully for four years but thereafter he started suffering losses. Consequently, he also committed default in repayment of loan. Therefore, respondent no. 2, Canara Bank initiated a recovery proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( herein after referred to as Act) and issued a notice under Section 13 (2) of the Act dated 3.2.2007. In reply of notice the petitioner approached the Bank and pointed out some irregularities in the notice and also sought further time for repayment of loan. He also requested to credit mortgaged money a....
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....n application for interim relief. The respondent- Bank filed written statement in which he admitted that the account was classified as NPA on 1.4.2007 while notice was issued under Section 13 (2) of the Act on 3.2.2007. In reply the respondent-Bank also submitted that the auction has been finalized in favour of one Mohammad Momzzam Khan ( respondent no. 4) being highest bidder. His highest bid was Rs.6400780/- against the reserve price of Rs.3564000/-. It was also stated by the respondent-Bank that he had deposited the entire 25 % of the bid amount well within time and balance 75% of the bid amount was to be paid by him before 8.10.2007. The learned appellate Tribunal stayed the confirmation of auction sale held on 20.9.2007. Subsequently through the supplementary written statement the respondent Bank modified its statement regarding classification of petitioner's account as NPA and submitted that it was classified on 1.7.2006 instead of 1.4.2007. The respondent- Bank also submitted that the entire amount deposited by the auction purchaser has been duly credited to the loan account between the period of 20.9.2007 to 13.10.2007 and account has been closed. However, the Debt Re....
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....ers." The learned counsel for the petitioner further submitted that auction purchaser M/S Mama Builders did never submit any demand draft of 10% of the reserve price nor was 25 % of the highest bid ever deposited by the auction purchaser. He further submitted that balance 75 % of the total bid amount was not deposited within fifteen days of confirmation of sale and in said default the property was required to be re-sold and amount already deposited was required to be forfeited but instead of doing so the auction purchaser issued a sale certificate in favour of auction purchaser in illegal manner. On the aforesaid back drop the petitioner has also prayed to declare the auction in question as nullity. Since auction took place during the pendency of the review application, the petitioner moved two applications in the review petition, one for amendment of the review petition and another for impleadment of auction purchaser, but those have been rejected on the ground that the respondent- Bank had already given description of auction through its counter affidavit filed in the review application and as such the irregularity in auction is not a new fact on which basis the impugned or....
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.... 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. 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 Cou....
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.... ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law" 53. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another (2010) 4 SCC 772, the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under ....
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....he respondent No.4 contended that earlier when the petitioner tried to bypass the alternative remedy, the Division Bench of this Court in writ petition No. 6956 of 2007 observed that since the petitioner has got remedy under section 17 of the Act, the writ petition could not be maintainable. Similarly now after the order passed by the Debts Recovery Tribunal there is a provision of appeal against the order of the Appellate Tribunal under section 18 of the Act, section 18 of the Act is extracted below:- 18. Appeal to Appellate Tribunal-(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under section 17, may prefer an appeal along with such fee, as may be prescribed] to an Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal: [Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:] [Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, which....
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....ndamental right. A Constitution Bench of this Court has considered the applicability of rule of res judicata in writ proceedings under Article 32 of the Constitution in Daryao & ors. vs. State of U.P. & ors. [1962 (1) SCR 574] and it was held that the basis on which the rule rests is founded on consideration of public policy and it is in the interest of public at large that a finality should attach to the binding decision pronounced by a court of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over in the same kind of litigation." 2010 (13) SCC 158 Om Prakash Verma Vs. State of U.P. and others, relevant paragraph No.70 is quoted below:- "70. This Court has approved this well settled principle that a judgment of the Supreme Court cannot be collaterally challenged on the ground that certain points had not been considered. This Court in Anil Kumar Neotia and Others vs. Union of India and Others, (1988) 2 SCC 587 held that it is not open to contend that certain points had not been urged or argued before the Supreme Court and thereby seek to reopen the issue. The re....
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.... deserves to be heard and decided on merit. Though the learned counsel for the respondent reemphasized his arguments against the maintainability of the writ petition on the ground that even after dismissal of the Special Leave Petition by the Hon'ble Supreme Court, the question of maintainability is still open for consideration of this Court in the light of the decisions of the Hon'ble Supreme Court referred as above, however, without disputing the availability of appeal against the order impugned under section 18 of the Act. I am of the view that now at this stage it is not open for the respondents to raise such an objection a fresh against the maintainability of the writ petition, therefore I proceed to decide the case on merit. Indisputedly during the pendency of the case before the Tribunal the auction took place, the petitioner raised finger over the several illegalities committed in the auction proceeding and therefore he has also prayed for declaring the auction held on 20.09.2007 as nullity on several grounds. Upon perusal of the record I also find that before the Tribunal the petitioner moved an application for impleadment of auction purchaser as well as amendment....