Mrs. Mouhua Ghosh V. Union of India & Ors.

WPA/23/2022

AI Insights

The case involves Mrs. Mouhua Ghosh, the petitioner, who filed a writ petition against the Union of India and others, challenging actions related to the SARFAESI Act, 2002. The primary legal issue was the maintainability of the writ petition given the availability of an alternative remedy under the SARFAESI Act, which the petitioner had already pursued by filing an application with the DRT. The respondents, specifically the Bank, argued that the writ petition was not maintainable due to the existence of this alternative remedy. The court, referencing the Supreme Court's decision in Commissioner of Income Tax & Ors. Vs. Chhabil Dass Agarwal, examined exceptions to the rule of not entertaining writ petitions when an alternative statutory remedy is available. However, the court found that none of the exceptions applied in this case, leading to the dismissal of the writ petition.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 803976 (HC-WEST_BENGAL)
• Appeal Type: Others
• Pronouncement Date: 20-06-2022
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax & Ors. Vs. Chhabil Dass Agarwal, Authorized Officer, State Bank of Travancore & Anr. Vs. Mathew K.C.
• Laws Referred To: SARFAESI Act, 2002
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SONI OJHA; SAMBRITA CHATTERJEE
• Assessee Lawyers: SIDDHARTHA BANERJEE; SUBHANKAR DAS; BIKRAM SARKAR; SOUMYAJIT MAJUMDER
• Keywords: Alternative remedy; DRT; Maintainability; SARFAESI Act
• Section: 13(2); 17

Judgement Text

" Ct. 05 Item No.25 20.06.2022 (Suvendu) WPA 23 of 2022 With CAN 1 of 2022 Mrs. Mouhua Ghosh Vs. Union of India & Ors. Mr. Siddhartha Banerjee Mr. Subhankar Das Mr. Bikram Sarkar Mr. Soumyajit Majumder ………..for the petitioner Ms. Soni Ojha Ms. Sambrita B. Chatterjee ……for the respondent nos. 3 & 4 Since the point of maintainability has been taken by the respondent nos. 3 and 4/ Bank, this Court wishes to decide this point first. It appears from the submissions of the Bank that the petitioner has filed an application before the DRT on 6th June, 2022 under Section 17 of the SARFAESI Act, 2002. Counsel submits that the relief prayed for by the petitioner before the DRT relates to the same subject matter as is before this Court in the present writ petition. Counsel cites decisions on the alternative remedy aspect. After hearing learned counsel appearing for the parties, it is clear that the Supreme Court in Commissioner of Income Tax & Ors. Vs. Chhabil Dass Agarwal, (2014) 1 SCC 603, laid down the principles which could govern the exceptions for availing the alternative remedy. These exceptions, as particularized in paragraphs 15 an 16 of the Report, are the following – (i) where the remedy available under the statute is not an effective remedy and would not offer substantial relief, (ii) where the statutory authority has not acted in accordance with the provisions of the governing statute, (iii) where the statutory authority has acted in defiance of the fundamental principles of judicial procedure, (iv) where the statutory authority has invoked provisions which are repealed and (v) where the statutory authority has passed an order in breach of the principles of natural justice. In Authorized Officer, State Bank of Travancore & Anr. Vs. Mathew K.C., (2018) 3 SCC 85, the Supreme Court deprecated the practice of Courts giving decision contrary to the settled position in law without stating reasons for the same. The present matter involves the following admitted facts – First, the petitioner was served with the Notice under Section 13(2) of the SARFAESI Act, 2002 dated 16.09.2021. The petitioner waited for three months before making a representation to the Bank on 21.12.2021. The petitioner approached this 2 Court on 03.01.2022 with a prayer for a direction on the Bank to consider the representation made by the petitioner 21.12.2021. The petitioner in the meantime filed an application before the designated forum, being the DRT on 06.06.2022. It is the stated position that all the three Tribunals of the DRT are presently functioning. Hence, there is no embargo on the petitioner for proceeding with her application before the Tribunal. The direction on the Bank to consider the representation made by the petitioner in December, 2021 would really be of no benefit to any of the parties before the Court since the petitioner has already taken steps in the DRT pursuant to the 13(2) Notice dated 16.09.2021. It is also not disputed that none of the exceptions as laid down by the Supreme Court in Chhabil Dass Agarwal are present in the facts of the present case. This Court hence finds no reason to deviate from the legal position as exists today with regard to the bar on the ground of an alternative remedy being available to the litigant who approaches the writ court. WPA 23 of 2022 along with CAN 1 of 2022 are accordingly dismissed in view of the above reasons. (Moushumi Bhattacharya, J.) 3 4 "