TaxTMI 
TaxTMI 
2024 (7) TMI 453
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....om date of filing of the application till date of realization, failing which the said amount shall be recovered from the sale of mortgaged property bearing no. 312 and 313, 3rd floor, P.P. Tower, Tower B, Plot No. C-1, 2 and 3, Netaji Subhash Place, Pitampura, Delhi without roof rights having super area of 2850 sq. ft. ('secured asset'). Brief facts 2. The Petitioner No.1 herein had executed a Loan Agreement dated 21st August, 2015 with the Respondent No.2, i.e. Bajaj Finance Limited, against mortgage of the secured asset, for a sum of Rs. 2,97,00,000/-. It is stated that subsequently, the said loan account along with its debt/ receivables was assigned to the Respondent No.1, i.e. Asset Reconstruction Company India Ltd.) w.e.f. 24th June, 2021 2.1. The loan account of Petitioner No.1 herein was declared as Non-Performing Asset ('NPA'). It is stated that thereafter, on 20th December, 2021, the Respondent No.1 issued a Notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act'), seeking repayment of the alleged debt to the extent of Rs. 2,73,92,579.89/- along with future interest and charge....
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....he present petition in view of the availability of statutory remedy of appeal under Section 20 of the RDDB Act. He states that Petitioners have approached this Court with unclean hands, inasmuch as, they have flouted the order of the CMM and interfered with possession of the secured asset by unauthorisedly breaking open the seal of the Respondent No.1 on the secured asset. 4. In reply, learned counsel for the Petitioners states that the remedy of filing an appeal under Section 20 of the RDDB Act is not efficacious as the Petitioners will have to comply with the statutory mandate of pre-deposit. He states that the grounds raised in the present petition are sufficient for carving out an exception in favour of the Petitioners to maintain the present writ petition. He states that the legal objections to the maintainability of the recovery proceedings under Section 19 of the RDDB Act were never raised by the Petitioners during the said proceedings. He states that this objection has been raised for the first time in this petition. 4.1. He states that since the Petitioner No.1 had first invoked the provisions of SARFAESI Act by issuing notice dated 26th November, 2021 under Section 13(2....
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....er. The relevant extract of the said judgment reads as under : "64. In the light of the above discussion, we now examine the doctrine of election. There are three elements of election, namely, existence of two or more remedies; inconsistencies between such remedies and a choice of one of them. If any one of the three elements is not there, the doctrine will not apply. According to American Jurisprudence, 2d, Vol. 25, p. 652, if in truth there is only one remedy, then the doctrine of election does not apply. In the present case, as stated above, the NPA Act is an additional remedy to the DRT Act. Together they constitute one remedy and, therefore, the doctrine of election does not apply. Even according to Snell's Principles of Equity (31st Edn., p. 119), the doctrine of election of remedies is applicable only when there are two or more co-existent remedies available to the litigants at the time of election which are repugnant and inconsistent. In any event, there is no repugnancy nor inconsistency between the two remedies, therefore, the doctrine of election has no application. 5.4. In its later judgment in Mathew Varghese (supra) as well this issue was discussed and the Supr....
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....entioned in Section 37, namely, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force." 5.5. Subsequently, in M.D. Frozen Foods Exports Pvt. Ltd. (supra) the Supreme Court after considering the aforesaid judgments, yet again reiterated that the RDDB Act and SARFAESI Act are thus, complimentary to each other and it is not case of election of remedy. The Court held that in view of the provision of Section 37 of the SARFAESI Act, the application of the said Act will be in addition to and not in derogation of the RDDB Act. The relevant paras read as under: "27. On the SARFAESI Act being brought into force seeking to recover debts against security interest, a question was raised whether parallel proceedings could go on under the RDDB Act and the SARFAESI Act. This issue was clearly answered in favour of such simultaneous proceedings in Transcore v. Union of India [Transcore v. Union of India, (2008) 1 SCC 125 : (2008) 1 SCC (Civ) 116] . A later judgment in Mathew Varghese v. M. Amritha Kumar [Ma....