NIRMAL KUMAR VERMA Vs. DURGA ENGINEERING WORKS

JUDGEMENT

(1.) The petitioner, a guarantor of the loan, seeks to assail notice dated 24.8.2011 issued under Section 13(2) of the SARFAESI Act, to which no objections were filed ultimately resulting in a notice under Section 13(4) of the said Act on 24.9.2012. Instead of approaching the DRT by filing proceedings under Section 17 of the SARFAESI Act, the petitioner filed a civil suit for injunction in a Court at Faridabad. After withdrawing the suit, now the present writ petition has been filed under Article 226 of the Constitution of India. On a query being posed to learned counsel as to why the appropriate remedy before the DRT was not sought to be exhausted, as enunciated in Mardia Chemicals v. Union of India, 2004 4 SCC 311, learned counsel insists that this Court is not precluded and ought to exercise jurisdiction in the facts of the present case under Article 226 of the Constitution of India. To buttress the submission, learned counsel has referred to two judgments: (i) Somnath Manocha v. Punjab and Sind Bank & Anr., 2012 189 DLT 32 ; and (ii) Indumati Pattanaik vs. Chief Manager and Authorised Officer, Bank of India, Bhubaneswar Branch, 2005 100 CutLT 65, again of the Division Bench.

(2.) Learned counsel for the petitioner submits that though a decree was passed against both the borrowers and the guarantors on 6.12.1996, which was assailed in appeal and the appeal was dismissed on 2.11.1999, the time period for execution of the decree should be counted from the date when decree became executable which should be the date of passing of the decree. His submission, thus, is that since the decree could not be executed, the route of SARFAESI Act was not available and that aspect ought to be examined by this Court in the present proceedings.

(3.) We are not able to persuade ourselves to agree with the submission of the learned counsel for the petitioner. Insofar as those two judgments are concerned, they lay down a principle that non-exercising of jurisdiction under Article 226 of the Constitution of India is a matter of self-discipline of the Court rather than a bar when alternative remedy is available. In Somnath Manocha's case , in the peculiar facts of the case, the Court interfered finding that the appropriate remedy, existing prior to the SARFAESI Act coming into force, had not been invoked.