Excelsior Correspondent
Srinagar, July 10: High Court has held that it can entertain and intervene in the exceptional matters relating to loan recovery by the bank against the defaulter despite the remedy available with the defaulter is Debt Recovery Tribunal (DRT).
These observations were passed by the Division Bench of Chief Justice N Kotiswar Singh and Justice Moksha Kazmi in a case challenging the order of Chief Judicial Magistrate for taking over the possession of assets of the defaulter.
The order of taking over the possession of the defaulter was passed by the Chief Judicial Magistrate, Budgam under Section 14 of the SARFAESI Act at the instance of the respondent J&K Bank, by which the Sub Divisional Magistrate, Chandoora, was authorized to take possession of the mortgaged properties of the petitioner firm.
The petitioner counsel Shakir Haqani argued that that mandatory provisions under Section 13(3-A) read with Section 14 of the SARFAESI Act had not been complied with by the respondent Bank at the time of filing the application before the CJM seeking assistance of the Bank under Section 14 of the Act, on the basis of which the Chief Judicial Magistrate (CJM) passed the impugned order.
The bank counsel on the other hand raised the maintainability issue of jurisdiction of the court in entertaining the instant petition. He submitted that this issue cannot be examined by this Court in exercise of the writ jurisdiction under Article 226 of the Constitution and if the petitioner-defaulter has any grievance, he can approach the appellate forum before the Debt Recovery Tribunal available under Section 17 of the SARFAESI Act.
The division bench after considering the arguments advanced by both the parties came to the conclusion that since the remedy available with the defaulter against the bank actions is before DRT but the High Court has jurisdiction and can intervene in appropriate cases in exercise of writ jurisdiction under Article 226 of the Constitution.
“It cannot be said that this court has no jurisdiction at all under Article 226 of the Constitution to interfere with an order passed by the CJM under Section 14 of the Act. However, such discretionary writ jurisdiction has to be invoked most sparingly and not in a routine manner as there is an alternative statutory remedy available under Section 17 of the Act.”, DB recorded.
“For example, in the present case, if the respondent bank had admitted that the bank did not consider the reply/representation submitted by the borrower, which is mandatorily required to be undertaken by the Bank, the High Court perhaps could have intervened, rather than remitting the matter to the forum available, as it would merely delay the matter”, read the judgment.
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