PRATIBHA RAMESH PATEL Vs. UNION OF INDIA AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 35 of 2016, Judgment Date: Mar 09, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION(CIVIL) NO. 35 OF 2016
|PRATIBHA RAMESH PATEL Appellant(s)
Versus
|UNION OF INDIA AND ORS. Respondent(s)
J U D G M E N T
KURIAN, J.
1. We have heard learned counsel for the parties.
2. This writ petition under Article 32 of the Constitution of India is
filed mainly with the following prayers :-
(a) To declare that sections 2, 12 and 15(a) of the Enforcement of
Security Interest and Recovery of Debts Laws (Amendment) Act, 2012, which
has since been notified on 3rd of January, 2013 and the said Act to have
brought into force as well on 15th January, 2013, as unconstitutional and
void since the said Act by amendment to the Securitisation and
reconstruction of Financial Assets and Enforcement of Securities Interest
Act, 2002 and the Recovery of Debts Due to Banks and Financial Institutions
Act, 1993, has brought Multi State Co-operative Society within the ambit of
SARFAESI ACT, 2002 and the RDDBFI Act, 1993 and that to further declare
that the (Amended) Act, 2012 as unconstitutional and void for it is beyond
the legislative domain of the parliament to enact law concerning the “co-
operative societies” except as provided for under Articles 249, 250, 252
or253 of the constitution, and in doing so in contravention of Article 245
and 246 read with Schedule VII of the Constitution of India, has trenched
into the exclusive legislative domain of the State legislature, nay, had
inflicted fatal injury to the federal structure of the constitution, which
constitute to be the very basic feature of our constitution;
(b) To declare that, between Securitisation and Reconstruction of
Financial Assets and Enforcement of Securities Interest Act, 2002 (as
amended) and the Multi-State Co-operative Societies Act, 2002, provisions
of the latter Act will prevail for recovery of purported amount due to/from
a Co-operative Society or a Member or Borrower thereof and vice versa, and
that the former Act stands ousted;
(c) To declare that Sections 2, 12 and 15(a) of The Enforcement of
Security Interest and Recovery of Debts Laws (amendment) Act, 2012,
inserting sub-section 2(c)(iva) in the Securitisation and reconstruction of
Financial Assets and Enforcement of securities Interest Act, 2002, and sub-
sections 2(d)(vi) and 19(1A) in Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, passed by the Parliament, is
unconstitutional inasmuch as by the said amendment a Co-operative Society,
is sought to be brought within the purview of the SARFAESI Act, 2002;
(d) issue a writ in the nature of certiorari or certiorarified
prohibition or any other appropriate writ or order or direction, quashing
and setting aside the notice dated 7.10.2013 issued by Respondent Bank
under Section 13(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Securities Interest Act, 2002 and the order of
the Ld. District Magistrate, Thane, dated 10.04.2015 in Case No. 88/2014,
Ld. Tahsildar, Thane Notice No. revenue/Room-1/T-
1/Criminal/Vashi/7268/2015/dated 30.04.2015 and the two Possession Notices
dated 10.12.2015 vide Ref. No. Criminal/201/2015 and Ref. No.
Criminal/202/2015 issued by Divisional Official, Belapur, (Annexure “P2”
and Annexure “P3”) as without jurisdiction, in violation of the principles
of natural justice, section 91 and 91A of the Maharashtra Co-operative
Societies Act, 1960 (XXIV of 1961) and section 84 of the Multi State Co-
operative Societies Act, 2002 and hence null and void ab initio and by an
order of injunction or prohibition restrain the Respondent Bank, its
officers, men, agents and privies from in any manner interfering with the
peaceful possession and enjoyment of the petitioner's properties, which the
Respondent Bank claims to be a secured asset at its hands and, in
particular, from dispossessing the petitioner of her residential home under
the purported powers under Section 13 of the SARFAESI Act, 2002;
(e) To declare that the notice dated 7.10.2013 purportedly under Section
13(2) of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002, and impugned order of the Ld.
District Magistrate, raigad, Alibag dated 30/06/2014 (Annexure “P1”
purportedly under section 14 of the SARFAESI Act, 2002 in Case No. 18/2014
as null and void, being in violation of the principles of natural justice;
(f) To issue an appropriate writ, order or direction, declaring that the
respondent banks which are guilty of breach of contract, civil breach of
trust, culpable negligence, and malicious and tortuous action and therefore
no right or title has inured in them to invoke sections 5, 6 and 7 much
less section 13(2) of the SARFAESI Act, 2002, and that in any scenario the
respondent banks are duty bound to afford an opportunity of being heard to
the petitioner/her Company before an assignment of the 'security interest'
as defined in section 2(zf) of the SARFAESI Act, 2002, which it falsely
claim to be existing in its favour to any securitization companies and
further that such an obligation, to observe the principles of natural
justice, is liable to be read into sections 5, 6 and 7 of the SARFAESI Act,
2002 and in particularly section 6 thereof.
(g) issue a writ of prohibition or any other appropriate writ or order
restraining and prohibiting the respondents its agents, servants and
privies from classifying the account of the petitioner or her Company as
willful defaulter and proceeding in any manner or take recourse to any
judicial proceedings either by way of institution of a petition as against
the petitioner company or by taking recourse to the statutory powers vested
in them under section 13 of the SARFAESI Act, for to permit the respondent
Bank to do so would amount to multiplicity of proceedings, and further to
restrain and prohibit the Respondent Bank from taking recourse to any
precipitatory steps including assignment of the petitioner's property to
any Asset Reconstruction Company;
(h) issue a writ of prohibition or any other appropriate writ or order
restraining and prohibiting the respondents, its agents, servants and
privies from in any manner interfering with the peaceful possession and
enjoyment of the properties of the petitioner/petitioner's company or the
purported borrowers and purported guarantors which the Respondent Bank
falsely claim to be secured assets at its hands and in particular
proceeding any further pursuant to the notice dated 7.10.2013 purportedly
under Section 13(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security interest Act, 2002, and impugned order
of the Ld. District Magistrate, dated 30/06/2014 purportedly under Section
14 of the SARFAESI Act, 2002 in Case No. 18/2014.
(i) issue a writ in the nature of mandamus or any other appropriate writ,
order or direction, to the Respondent Bank/Authorised Officer to state on
affidavit the source of his authority to invoke Section 13 of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 and to produce a copy of the Resolution, if
any, passed by the Board of Directors of the Respondent Bank by which he
was appointed as an authorized officer to exercise the function under
Section 13(2) of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 and the Security Interest.
(j) pass any other order or orders which this Hon'ble Court may deem fit
and proper under the facts and circumstances of the case as also in the
interest of justice as the nature and circumstances of the case may
require.”
3. The petitioner has filed another writ petition under Article 226 of
the Constitution of India before the High Court of Bombay, literally with
the same prayers. In the said writ petition, on 30th October, 2015, the
High Court passed the following interim order :-
“Not on Board. Mentioned.
2.Having heard Mr. Nedumpara, learned counsel appearing for the
petitioner and since our attention is invited to the communication at pages
59 and 60 of the paper book, we pass the following order :-
i. Issue notice to Respondent Nos. 1 and 2 returnable on 4th December,
2015.
ii. On the condition that the petitioner deposits a sum equivalent of 50%
of the amount claimed by respondent Nos. 1 and 2 with Respondent No.1 Bank
on or before 3rd December, 2015 and without prejudice to its rights and
contentions, there would be ad-interim order restraining Respondent Nos. 1
and 2 and respondent Nos. 5, 6, 7 and 8 from enforcing and executing the
order passed under Section 14 of the SARFAESI Act in Case No. 18 of 2014.
iii. If the amount as mentioned above, is not deposited on or before 3rd
December, 2015, the ad-interim order to stand vacated without any further
reference to the Court.
3. Needless to clarify that this order and direction is without
prejudice to the rights and contentions of all parties.”
4. Admittedly, the said order was not complied with and therefore,
interim order stood vacated. But the writ petition having been admitted by
the Court is still pending before the High Court.
5. In the writ petition filed under Article 32 of the Constitution of
India, before this Court, the petitioner has, no doubt, disclosed filing of
the writ petition before the High court at paragraph 39. To the extent
relevant, the statement reads as follows :-
“The petitioner instituted the petition under Article 226 of the
Constitution of India, seeking a declaration that the measures under
Sections 13 and 14 of the SARFAESI Act, 2002 are void ab initio. The
Hon'ble High Court, Bombay was pleased to admit the said Writ Petition.
Though the Hon'ble High Court, Bombay, was pleased to admit the said Writ
Petition it was not inclined to stay the proceedings under Sections 13 and
14 of the SARFAESI Act, 2002 unconditionally. The Hon'ble High Court was
pleased to grant an injunction, however, the condition subject to which the
interim injunction was granted was erroneous that the petitioner was unable
to comply with the same. Considering the larger issue, the petitioner, has
instituted the instant Writ Petition under Article 32 of the Constitution
of India before this Hon'ble Court....”
6. In I.A. No.2 of 2016, the Respondent No.2 has produced copy of the
Writ Petition No. 3145 of 2015 filed by the writ petitioner before the High
Court of Bombay.
7. We have gone through the pleadings in both the writ petitions.
8. Virtually, the writ petition filed before this Court is a true copy
of the writ petition filed by the petitioner under Article 226 of the
Constitution of India before the High Court except for the disclosure of
the pendency of the writ petition and some other minor changes.
9. What is revealed from what we have narrated above is certainly
shocking. The petitioner having filed a writ petition before the High
Court under Article 226 of the Constitution of India, the writ petition
having been admitted by the Court, the High Court having granted an inter
im order which has worked itself out and the petition is still pending
before the High Court, filing a writ petition under Article 32 of the
Constitution of India before this Court is nothing but an abuse of process
of the Court, if not misuse.
10. Having invoked a constitutional remedy before the High Court under
Article 226 of the Constitution of India, the petitioner cannot, under Law,
file another petition under Article 32 of the Constitution of India on
identical set of facts for identical reliefs.
11. In the above circumstances, this writ petition is dismissed with
costs of Rs.1,00,000/- (rupee one lakh only) to be deposited with the
Supreme Court Legal Services committee within four weeks.
........................J.
(KURIAN JOSEPH)
........................J.
(ROHINTON FALI NARIMAN)
New Delhi,
March 09, 2016
ITEM NO.3 COURT NO.10 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 35/2016
PRATIBHA RAMESH PATEL Petitioner(s)
VERSUS
UNION OF INDIA AND ORS. Respondent(s)
(With appln.(s) for stay and vacating stay and office report)
Date : 09/03/2016 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
For Petitioner(s)
Mr. A.C. Philip, Adv.
Mr. Rabin Majumder,Adv.
Mr. Anjan Sinha, Adv.
For Respondent(s)
Mr. Rajeev K. Pandaya, Adv.
Mr. Rajeev Maheshwaranand Roy, Adv.
UPON hearing the counsel the Court made the following
O R D E R
This writ petition is dismissed with costs of Rs.1,00,000/-
(rupee one lakh only) to be deposited with the Supreme Court Legal Services
Committee within four weeks in terms of the signed reportable judgment.
Pending applications, if any, stand disposed of.
[RENU DIWAN] [SUKHBIR PAUL KAUR]
COURT MASTER A.R.-CUM-P.S.
(Signed reportable judgment is placed on the file)
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