BEFORE THE HON’BLE SUPREME COURT OF INDIA

CIVIL APPEAL NO. 1281 OF 2018

(ARISING OUT OF SLP (C) NO.24610 OF 2015)

IN THE MATTER OF

AUTHORIZED OFFICER, STATE BANK OF APPELLANT

TRAVANCORE AND ANOTHER

VERSUS

MATHEW K.C RESPONDENT

APPEAL FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF

INDIA, 1949

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

COUNSEL APPEARING ON BEHALF OF THE APPELLANT
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS
INDEX OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES RAISED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER
 LIST OF ABBREVIATIONS

A.I.R. All India Reporter

Art. Article
All. Allahabad
Anr. Another
H.C High Court
Hon’ble Honourable
ILR Indian Law Reporter
M.P. Madhya Pradesh
Ors. Others
Para. Paragraph
Pg. Page
Pvt. Private
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
U.P. Uttar Pradesh
UOI Union of India
v. Versus
Vol. Volume
 INDEX OF AUTHORITIES

 STATUTORY COMPILATIONS
1) The Constitution of India, 1949
2) Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002
3) Recovery of Debts due to Banks and Financial Institutions Act (RDBBFI), 1993.

 DICTIONARIES
1) BLACK’S LAW DICTIONARY, (11th Ed.1999)
2) OXFORD ENGLISH DICTIONARY OUP
3) P. RAMANATHAAIYAR’S THE LAW LEXICON, THE ENCYCLOPEDIC LAW, (2nd Ed,
reprint 2009)
4) WEBSTER’S NEW ENCYCLOPEDIA DICTIONARY, (2002)

 WEBSITES
1) www.manupatra.com
2) www.indiankanoon.org
3) www.judis.nic.in

 BOOKS

1) D. D. Basu Commentary on The Constitution of India, (8th ed., Lexis Nexis

Butterworth Wadhwa Publications, Nagpur, 2008)
2) Granville Austin, Cornerstone of a Nation (Indian Constitution) 75 Oxford India
(1999)
3) H.M. Seervai, Constitutional Law of India, (4th ed., Universal Law Publishing,
New Delhi, 2010)
4) Halsbury’s Laws of India, Vol. 35, (2nd ed.Lexis-Nexis Butterworth Wadhwa,
Nagpur, 2007)
5) M P Jain, Indian Constitutional Law, (7th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur, 2016)
 CASES

1) Mohd. Hussain Umar Kochra etc. vs. K. S. Dalipsinghji and Anr. 1970 AIR 45
2) Indira Kaur and ors. Vs. Sheo Lal Kapoor AIR 1988 SC 1074
3) Thanshingh Nathmal and Ors. vs A. Mazid, Superintendent of Taxes, (1964) AIR
1419
4) Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, (1983) 2 SCC 433
5) Commissioner of Income Tax and Ors. vs. Chhabil Das Agarwal (2014) 1 SCC
603
6) United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110
7) General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs.
Ikbal and others, 2013 (10) SCC 83
8) Punjab National Bank vs. O.C. Krishnan and others, (2001) 6 SCC 569,
9) Union Bank of India and another vs. Panchanan Subudhi, 2010 (15) SCC 552
10) Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others,
2011 (2) SCC 782
11) Punjab National Bank and another vs. Imperial Gift House and others, (2013) 14
SCC 62
12) Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad,
13) Whirlpool Corpn. v. Registrar of Trade Marks
14) Harbanslal Sahnia v. Indian Oil Corpn. Ltd.
15) Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and
Another, 1997 (6) SCC 450
 STATEMENT OF JURISDICTION

The Appellant humbly submits before the Hon’ble Supreme Court of India, the memorandum
for the Appellant under Article 136 of The Constitution of India 1949. In this case the
Appellant has appealed against the impugned order of the High Court.

The present memorandum sets forth the facts, contentions and arguments in the present case.

Article 136 of The Constitution Of India 1949 read as ;

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
 STATEMENTS OF FACTS

1. The Respondent has procured a loan from the Appellant bank, but the Respondent
failed to pay the loan amount and was declared Non-Performing Asset (‘NPA’) on
28.12.2014 and the proceedings were initiated under the The Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002
(hereinafter referred as the ‘SARFAESI Act’).
2. Despite repeated notices, the Respondent failed and neglected to pay the dues.
Statutory notice under Section 13(2) of the SARFAESI Act was issued to the
Respondent on 21.01.2015. The objections under Section 13(3A) were considered,
and rejection was communicated by the Appellant on 31.3.2015.
3. Possession notice was then issued under Section 13(4) of the Act read with Rule 8 of
The Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as ‘the
Rules’) on 21.04.2015.
4. Aggrieved against the order passed under Section 13(3A) of the SARFAESI Act, the
Respondent / borrower filed a writ petition in the High Court under Article 226 of the
Constitution, staying further proceedings at the stage of Section 13(4) of the
SARFAESI Act. The outstanding dues of the Respondent on the date of the institution
of the writ petition was Rs. 41,82,560/-.
5. Interim order was passed by the High court on 24.04.2015. and the same was
challenged in the Hon’ble Supreme Court of India by the Appellant bank through the
Special Leave Petition (“SLP”).
 ISSUES RAISED

1. WHETHER THIS SPECIAL LEAVE PETITION (SLP) IS MAINTAINABLE

IN THE HON’BLE SUPREME COURT OF INDIA?

2. WHETHER A HIGH COURT CAN ENTERTAIN A WRIT PETITION

UNDER ARTICLE 226 OF THE CONSTITUTION IF AN ALTERNATIVE
STATUTORY REMEDY IS AVAILABLE?
 SUMMARY OF ARGUEMENTS
1) Whether this SLP is maintainable in the Hon’ble Supreme Court of India?

Following SLP has been filed against the interim order passed by the High court.
Following SLP is filed under Article 136 of the Constitution of India in the Hon’ble
Supreme Court of India under which the Supreme Court of India vests with a special
power to grant special leave, to appeal against any judgment or order or decree in any
matter or cause, passed or made by any Court/tribunal in the territory of India.
Therefore in the present case the SLP filed is maintainable in the Hon’ble Supreme
Court of India.

2) Whether a High Court can entertain a writ petition under Article 226 of the
constitution if an alternative statutory remedy is available?

The Appellant / Bank submitted that the SARFAESI Act is a complete code by itself,
providing for expeditious recovery of dues arising out of loans granted by financial
institutions, the remedy of appeal by the aggrieved Under Section 17 before the Debt
Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under
Section 18. The High Court ought not to have entertained the writ petition in view of
the adequate alternate statutory remedies available to the Respondent. The writ
petition ought to be dismissed at the threshold on the ground of maintainability.
 ARGUEMENTS ADVANCED
1. Whether this SLP is maintainable in the Hon’ble Supreme Court of India?

 It is humbly submitted before this Hon’ble Supreme Court that this SLP is
maintainable in the court. Article 136(1) of The Constitution of India, 1949
reads as follows;

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may,

in its discretion, grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination,

sentence or order passed or made by any court or tribunal constituted
by or under any law relating to the Armed Forces.

 The power of the court to hear appeals in this Article is much wider and
general. It vests in the Supreme Court plenary jurisdiction in the matter of
entertaining and hearing appeals by granting special leave against;

i. any judgement, decree, determination or order,

ii. in any cause or matter,
iii. passed or made by any court or tribunal.

 The Appellant in the present case has filed the SLP under Article 136 as the
High court was erroneous in passing the interim order against the Appellant
bank and staying further proceedings at the stage of Section 13(4) of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act (SARFAESI Act).

 In the case of Mohd. Hussain Umar Kochra etc. vs. K. S. Dalipsinghji and
Anr. 1970 AIR 45, it was held that,
“this court does not reappraise the evidence unless the findings are

Mohd. Hussain Umar Kochra etc. vs. K. S. Dalipsinghji and Anr. 1970 AIR 451
 perverse or are vitiated by any error of law or there is grave miscarriage of
justice1.

 In another case of Indira Kaur and ors. Vs. Sheo Lal Kapoor AIR 1988 SC
1074, it was held that;
“if and when the court is satisfied that great injustice has been done it is not
only the ‘right’ but also the ‘duty’ of this court to reverse the error and the
injustice and to upset the findings notwithstanding the fact that it has been
affirmed thrice2”

Decided cases however established that Supreme Court will grant special
leave appeal in exceptional cases which are;

(i) where grave and substantial injustice has been done by disregard to the
forms of legal process or
(ii) violation of the principles of natural justice or otherwise.

 In this present case, there has been grave and substantial injustice done by
disregard to the forms of legal process as the High Court has committed an
error in passing the interim order against the Appellant bank staying further
proceedings even when the Respondent had alternate statutory remedy
available to him under law.

The substantial and grave injustice has been done and the case in question
presents features of sufficient gravity to warrant a review of the decision
appealed against.

Therefore this SLP is maintainable in the Hon’ble Supreme Court of India.

2
Indira Kaur and ors. Vs. Sheo Lal Kapoor AIR 1988 SC 1074
 2. Whether a High Court can entertain a writ petition under Article 226 of the
constitution if an alternative statutory remedy is available?

 The writ petition filed under Article 226 is not maintainable as the
normal rule is that writ petition under Article 226 ought not to be
entertained if alternate statutory remedies are available.

In the case of Thanshingh Nathmal and Ors. vs A. Mazid, Superintendent of

Taxes, (1964) AIR 1419 it was held that, the jurisdiction of the High Court
under Article 226 of the Constitution is couched in wide terms and the
exercise thereof is not subject to any restrictions except the territorial
restrictions which are expressly provided in the Articles. But the
exercise of the jurisdiction is discretionary: it is not exercised merely
because it is lawful to do so. Ordinarily the Court will not entertain a
petition for a writ under Article 226, where the petitioner has an
alternative remedy, which without being unduly onerous, provides an
equally efficacious remedy obtained in a suit or other mode prescribed
by statute.1
“the High court does not act as a court of appeal against the decision
of a court or tribunal, to correct errors of fact and does not by
assuming jurisdiction under Article 226 trench upon an alternative
remedy provided by statute for obtaining relief. Where it is open to the
aggrieved petitioner or even itself in another jurisdiction for obtaining
redress in the manner provided by a statute, the High court normally
will not permit by entertaining a petition under Article 226 of the
constitution the machinery created under the statute to be bypassed,
and will leave the party applying to it to seek resort to the machinery
so set up.”

Thanshingh Nathmal and Ors. vs A. Mazid, Superintendent of Taxes, (1964) AIR 1419
 In the case of Titaghur Paper Mills Co. Ltd. Vs. State of Orissa,
(1983) 2 SCC 433, this court observed that;
“it is well recognised that where a right or liability is created by
a statute which gives us special remedy for enforcing it the
remedy provided by that statute only must be availed of”

In the case of Commissioner of Income Tax and Ors. vs. Chhabil Das
Agarwal (2014) 1 SCC 603 it was held that the statutory forum is
created by law for redressal of grievances, the writ petition should not
be entertained ignoring statutory dispensation subject to certain
exceptions. It is essentially a rule of policy, convenience and discretion
rather than a rule of law2.
Thus the propositions laid down in Thansigh Nathmal case, Titagarh
Paper Mills case and other similar judgements that High Court will not
entertain a petition under Article 226 if an effective alternative remedy
is available to the aggrieved person or the statute under which the
action complained of has been taken itself contains a mechanism for
redressal of grievance still holds the field. Therefore, when a statutory
forum is created by law for redressal of grievances, a writ petition
should not be entertained ignoring the statutory dispensation.

1
Thanshingh Nathmal and Ors. vs A. Mazid, Superintendent of Taxes, (1964) AIR 1419
2
Commissioner of Income Tax and Ors. vs. Chhabil Das Agarwal (2014) 1 SCC 603
 Under Article 226 of the Constitution the discretionary jurisdiction of
High Court is not absolute but has to be exercised judiciously in the
given facts of a case and in accordance with law. The pleadings in the
writ petition are very bald and contain no statement that the grievances
fell within any of the well defined exceptions. The allegation for
violation of principles of natural justice is rhetorical, without any details
and the prejudice caused thereby. It harps only on a desire for
regularization of the loan account, even while the Respondent
acknowledges its own inability to service the loan account for reasons
attributable to it alone.

 The writ petition was clearly not instituted bonafide but patently to stall
further action for recovery, as the fact that the Section 13(4) notice was
issued on 21.04.2015 and the remedy under section 17 of the
SARFAESI Act was available was not placed before the Court when the
impugned interim order came to be passed on 24.04.2015.

 Also, it is nowhere pleaded why the remedy available Under Section 17

of the Act before the Debt Recovery Tribunal was not efficacious and
the compelling reasons for by-passing it.
Lastly, the Hon’ble Supreme Court observed that it is the solemn duty of the Court to
apply the correct law without waiting for an objection to be raised by a party,
especially when the law stands well settled. Any departure, if permissible, has to be
for reasons discussed, of the case falling under a defined exception, duly discussed
after noticing the relevant law. In financial matters grant of ex-parte interim orders can
have a deleterious effect and it is not sufficient to say that the aggrieved has the
remedy to move for vacating the interim order. Loans by financial institutions are
granted from public money generated at the tax payer’s expense. Such loan does not
become the property of the person taking the loan, but retains its character of public
money given in a fiduciary capacity as entrustment by the public. Timely repayment
also ensures liquidity to facilitate loan to another in need, by circulation of the money
and cannot be permitted to be blocked by frivolous litigation by those who can afford
the luxury of the same.

The Hon’ble Supreme Court observed that the writ petition ought not to have been
entertained and the interim order granted for the mere asking without assigning special
reasons, and that too without even granting opportunity to the Appellant to contest the
maintainability of the writ petition and failure to notice the subsequent developments
in the interregnum. As such, the impugned order is contrary to law laid down by this
court and is unsustainable.
 PRAYER

In the light of facts stated issue raised and argument advance it is humbly prayed before the
Hon’ble Supreme Court that it may be pleased to hold that:

1. The Special Leave Petition is maintainable.

2. And to set aside the interim order passed by the High Court.

That it is also humbly prayed that this Hon’ble court may pass this order upholding
the principles of “Auctus Curiabe Neminem Gravabit ‘’

Which means “an act or order of the court shall be biased to none ‘’.