Under Section 17 Of The Securitisation Act Which, Inthe Case Of Maradia Chemicals Ltd v. Dismissed Keeping All Rival Contentions Of The Rival

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 561 OF 2005 Union of India.V/s.1. The Janata Sahakari Bank Ltd.,Pune. 2. Bharat Somchand Khona. ... Petitioner. ... Respondents. B.M.Chatterjee with Y.S.Bhate and Y.R.Mishrafor the petitioner. Shekhar Naphade with Ms.Kaushik i/b.M/s.Ramanathsekhar & Co. for the respondents. CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. DATED : 27th April 2005. P.C. :---- In spite of the service of the demand notice, respondent No.2 failed to pay the assessed tax. 3.Since respondent No.2 - assessee became a 5.The respondent No.2 committed defaults in the realisation of whole amount, todisputant. 4.Opponent do pay costs of this disputeto the disputant and bear his own." from respondent No.2 pursuant to the award dated 3rd July, 2002 referred to hereinabove. is a subject matter of challenge in the present writpetition filed under Article 226 of the Constitution of India claiming two reliefs reading as under: (a)That this Hon’ble Court may be pleased toissue a writ of certioriari or a writ in thenature of certioriari or any other writ, orderor direction under Article 226 of theConstitution of India calling for the recordsin relation to the Proclamation of Sale of thesaid Property as described in Para 2 of thePetition U/s.13(4)(a) of the Securitisationand Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002 andSecurity Interest (Enforcement) Rules 8(5) &s9(1) of 2002 issued by the Respondent throughits Special Recovery Officer, and afterperusing the legality and validity thereof,quash and set aside the said Proclamation ofSale of the said Property, being Exhibit "O"annexed hereto;(b)That this Hon’ble Court may be pleased toissue a writ of mandamus or a writ in thenature of mandamus or any other appropriatewrit, order or direction under Article 226 ofthe Constitution of India ordering anddirecting the Respondent No.1 to forthwithhand over the possession of the said Propertyto the Petitioner so as to enable thePetitioner to auction the said Property asdescribed in Para 2 of the Petition accordingto the provisions of the Income Tax Act, 1961and the Rules framed therein as the saidProperty was attached by the Petitioner byvirtue of ITCP-16, dated 11-04-1997 towardsthe realization of the Income Tax dues to berecovered from the Respondent No.2;7.At the outset, Mr.Chatterjee, learnedcounsel appearing for the petitioner/revenue fairlyconceded that no relief can be granted by this Courtpursuant to prayer clause (b) of the petition. Inview of this statement, what remains for said to be valid in absence of compliance of section 230-A of the I.T.Act. Per Contra :---------- auction of the property at the instance of respondent No.1 - bank. 10.Mr.Naphade, alternatively, submits that so the remaining 50% belongs to the wife of respondent submits that the petition is liable to be dismissed on this count. Consideration : ------------- under section 17 of the Securitisation Act which, inthe case of Maradia Chemicals Ltd. v. Union ofIndia, 2004 4 SCC 311, is held to be in the natureof original proceedings. If that be the case wherethe petitioner has an alternate efficacious remedy,it would be reasonable to relegate the petitioner toavail that alternate remedy as such this is not fitcase to invoke extra ordinary writ jurisdiction ofthis Court. Hence petition is liable to be dismissed keeping all rival contentions of the rival parties open. 12.In the result, petition is dismissed in limine for the reasons recorded herein with no order as to costs. dated 4th January, 2005 stand extended by another six weeks from today. (J.P.Devadhar, J.) (V.C.Daga, J.)