ISHAN SYSTEMS PVT LTD Vs. OPIEMUS INFRACOM LIMITED

JUDGEMENT

(1.) Ishan Systems Pvt. Ltd. having its registered office at New Delhi has filed this petition for quashing the order dated 10th July, 2012 passed by the Debts Recovery Tribunal-III, Delhi by which the application filed by the petitioner under Section 17(1) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the '2002 Act') has been rejected. The petitioner had filed the said application under Section 17(1) of the 2002 Act before the Debts Recovery Tribunal-III at Delhi for quashing the auction notice dated 31st October, 2011 issued by M/s. Phoenix ARC Private Limited, Mumbai for sale of the property of the petitioner as also the auction proceedings held on 5th December, 2011 at New Delhi.

(2.) It is for this reason that a preliminary objection was raised by Sri. Naveen Sinha, learned Senior Counsel appearing for M/s. Phoenix ARC Private Limited, Mumbai and Sri Suresh Dutt Dobhal, Learned Counsel appearing for M/s. Optiemus Infracom Limited, New Delhi that this Court does not have the jurisdiction to entertain the writ petition as the order passed by the Debts Recovery Tribunal-III at New Delhi has been challenged and no cause of action has arisen within the territorial jurisdiction of this Court. In this connection learned Senior Counsel for the respondents have placed before the Court the decisions of the Supreme Court in Ambica Industries v. Commissioner of Central Excise, 2007 6 SCC 769. It is also their submission that in any case the petitioner has an equally efficacious alternative remedy of filing an appeal under Section 18 of the 2002 Act before the Debts Recovery Appellate Tribunal at Delhi and reliance has been placed on the decision of the Supreme Court in United Bank of India v. Satyawati Tondon and others, 2010 8 SCC 110.

(3.) Sri Chetan Sharma and Sri Ravikant, learned Senior Counsel appearing for the petitioner have, however, submitted that this Court will have the jurisdiction to adjudicate upon the matter as the property in question is in NOIDA which is within the jurisdiction of this Court. Learned Senior Counsel have emphasised that the relief claimed in this petition is also for a direction upon the respondents to deliver physical possession of the property situated at NOIDA and, therefore, under Article 226(2) of the Constitution this Court will have the jurisdiction to entertain the petition as part of cause of action has arisen within the territorial jurisdiction of this Court. They have pointed out that it is for this reason that this Court had not only entertained Writ Petition No. 8409 of 2012 earlier filed by the petitioner but had also issued certain directions. It is also their submission that as the constitutional right of enjoyment of property of the petitioner under Article 300-A of the Constitution has been infringed and the order passed by the Debts Recovery Tribunal-III at Delhi is perverse since the provisions of Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as the 'Rules') have not been followed, this Court should entertain the writ petition and for this purpose have placed reliance on the decision of the Orissa High Court in M/s. Jholei Baba Agency v. State Bank of India, 2009 AIR(Ori) 109 and the Full Bench decision of the Delhi High Court in M/s. Sterling Agro Industries Ltd. v. Union of India and others, 2011 AIR(Del) 174 It is also their submission that since the Debts Recovery Appellate Tribunal had earlier formed an opinion while deciding the appeal filed against the grant of interim order by the Debts Recovery Tribunal, the petitioner should not be compelled to avail of the alternative remedy provided for under Section 18 of the Act. In this connection learned Senior Counsel for the petitioner have placed before the Court the decisions of the Supreme Court in Ram and Shyam Company v. State of Haryana and others, 1985 3 SCC 267; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, 1998 8 SCC 1 and Asha Prasad v. Chandrakant Gopalka and others, 2003 12 SCC 347.