WP No. 244 of 2012
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ALPHA MEDICAL SERVICES PVT LTD & ORS. Petitioners Versus
UCO BANK AND ANOTHER Respondents BEFORE:
The Hon'ble JUSTICE DEBASISH KAR GUPTA
Date : 29th March, 2012.
For Petitioner : Mr. Asoke Kumar Banerjee, Senior Advocate. Mr. Robilal Maitra, Senior Advocate.
Mr. Susovan Sengupta, Advocate.
Fo Bank/Respdt. : Mr. Sabyasachi Chowdhury, Advocate. Mr. Soumen Das, Advocate.
The Court : On the prayer made on behalf of the petitioners, leave is granted to add Kolkata Debts Recovery Tribunal as party- respondent to this proceeding.
The petitioner is directed to serve a copy of this writ application upon the newly added respondent and to file affidavit of service to that effect before this Court.
This writ application is directed against an order dated February 20, 2012 passed by the respondent no.3 in the matter of Alpha Medical Services Private Limited -vs- UCO Bank ( In re : SA No. 575 of 2011 ) as also a notice dated February 24, 2012 passed by the authorised officer of the Respondent-Bank in exercise of power conferred by section 13(4) of the SARFAESI Act, 2002. At the very outset, a preliminary objection is raised on behalf of the Respondent-Bank with regard to the maintainability of this writ application.
It is submitted by the learned Counsel appearing on behalf of the Respondent-Bank that in view of the provision of section 18 of the SARFAESI Act, 2002, this writ application cannot be entertained bypassing the above provision for preferring an appeal before the statutory authority. It is also submitted by him that the Respondent-Bank acted in terms of the order dated February 20, 2012 passed by the respondent no.3 directing the Respondent-Bank to issue notice under section 13(4) of the SARFAESI Act, 2002 afresh.
Drawing attention of this Court towards the findings of the respondent no.3 in its order dated February 20, 2012, in paragraph-11 of the order dated February 20, 2012, it is submitted by the learned Counsel that the circumstantial evidence was taken into consideration for deciding the issue of alleged non- 3
compliance of the provision of section 13(3A) of the SARFAESI Act, 2002.
It is submitted by the learned Senior Counsel appearing on behalf of the petitioner that the allegation is of non-compliance of the provision of section 13(3A) of the SARFAISI Act, 2002. According to him, there was violation of the statutory provision and the writ application is maintainable for redressal of grievances of the petitioner. It is also submitted by him that on the basis of the impugned order passed by the respondent no.3, the Respondent-Bank issued a notice under section 13(4) of the SARFAESI Act, 2002. Therefore, according to him, unless the operation of the above notice is stayed, till adjudication of the issue involved in this matter the petitioner shall suffer irreparable loss.
I have heard the learned Counsels appearing for the respective parties on the preliminary issue and I have given my thoughtful consideration to the facts and circumstances of this case. Admittedly, the petitioner-company submitted its objection dated March 10, 2011 against the notice issued by the Respondent- Bank under section 13(2) of the SARFAESI Act, 2002. No material is produced before this Court as yet to show that the Respondent- Bank communicated the reasons to the petitioner-company for non- acceptance of the above objection raised by the borrower in accordance with the provision of section 13(3A) of the SARFAESI 4
Act, 2002. The issue involved in this writ application is as to whether the circumstantial evidence was enough to presume compliance of the above statutory provision, as observed by the respondent no.3 in its order dated February 20, 2012. So far as the maintainability of an application under Article 226 of the Constitution is concerned, it is a discretionary power of a Court sitting in writ jurisdiction under Article 226 of the Constitution of India in the following circumstances : i) in case of violation of fundamental right, ii) in case of failure of principles of natural justice and iii) in the event an order is passed without jurisdiction or the vires of the Act is under challenge.
Reference may be made to the decision of Harbanslal Sahnia & Another -vs- Indian Oil Corporation & Ors. reported in (2003) 2 SCC 107 and the relevant portions of the above decision are quoted below :
" So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In appropriate case, in spite of availability of alternative remedy, the 5
High Court may still exercise in writ jurisdiction in at least three contingencies, (i) whether the writ petition seeks enforcement of any of the fundamental rights; (ii) whether there is failure of principles of natural justice; or (iii) whether the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged ( See Whirlpool Corporation -vs- Registrar of Trade Marks ). The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioner's dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." In view of the above settled principle of law, in my opinion, this is a fit case to exercise the discretional jurisdiction to admit this writ application on the basis of the facts and circumstances discussed hereinabove. The preliminary objection raised on behalf of the Respondent-Bank is rejected. Since the learned Counsel appearing on behalf of the respondents submits, in his usual fairness, that it is not necessary to file any affidavit-in-opposition in the matter and the matter can be decided on the basis of the materials brought on 6
record, leave is granted to the parties to mention the matter before the appropriate Bench for final hearing of this case. Upon prima facie consideration of the facts and circumstances of this case that no written communication was made by the Respondent-Bank to the petitioner showing the reasons for non- acceptance of the objections raised by the petitioner company in response to the notice issued under Section 13(2) of the SARFAESI Act, 2002 and the respondent no. 3 held that circumstantial evidence was enough to presume that the statutory provision of Section 13(3A) had been complied with, I find that petitioner company has not only made out a strong prima facie case but also the balance of convenience and/or inconvenience is in favour of granting interim relief to the petitioner. The respondent bank is restrained from giving further effect to the impugned notice dated February 24, 2012 issued under Section 13(4) of the SARFAESI Act, 2002 until further order.
All parties to act on a photostat signed copy of this order on the usual undertaking.
( DEBASISH KAR GUPTA, J.)
After the above order is passed, a prayer is made by the learned Counsel appearing for the respondent bank for staying operation of this order and the same is rejected. All parties to act on a photostat signed copy of this order on the usual undertaking.
( DEBASISH KAR GUPTA, J.)