PRATIBHA RAMESH PATELversusUNION OF INDIA AND ORS.

                               [2016] 2 S.C.R. 896



A                       PRATIBHA RAMESH PATEL
                                         v.

                        UNION OF INDIA AND ORS.
                      (Writ Petition (Civil) No.35 of20J 6)
B                               MARCH 09, 2016
    [KURIAN JOSEPH AND ROHINTON FALI NARIMAN, JJ.]
          Constitution of India - Arts. 32. 226 - Filing of writ petition
  u!Art. 32, during pendency of writ petition u!Art. 226 before the
  High Court for the same relief - Maintainability of petition u!Art.
c 32  - Writ petition filed u!Art. 32 by the petitioner challenging the
  constitutionality of ss. 2, 12 and 15{a) of the Enforcement of Security
  Interest and Recovery of Debts Laws (Amendment) Act, 2012 -
  Petitioner had filed writ petition u!Art. 226 before the High Court
  for the same relief - High Court admitted the writ petition and
D granted an interim order 11•hich worked itself out and the petition is
  still pending before the High Court - Held: Petition u/Art. 32 before
  this Court is not maintainable - It is an abuse of process of the
  Court, if not misuse - Having invoked a constitutional remedy before
  the High Court u!Art. 226, the petitioner cannot. under law, file
  another petition u/Art. 32 on identical set offacts for identical relief
E
  - Rs. 1 lakh cost imposed on the petitioner - Abuse of process of
  law - Remedy - Enforcement of Security Interest and Reco1'ery of
  Debts Lam (Amendment) Act, 2012 - ss. 2, 12 and l 5(a).
          CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
    35 of20 J6.
F
          A. C. Philip, Rabin Majumder,Anjan Sinha,Advs. forthe Petitioner.
         Rajeev K. Pandaya, Rajeev Maheshwaranand Roy, Advs. for the
    Respondents.
          The Judgment of the Court was delivered by
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          KURIAN, J. I. We have heard learned counsel for the pa11ies.
           2. This writ petition under A11icle 32 of the Constitution of India is
    filed mainly with the following prayers:-
           (a) To declare that sections 2, 12 and I 5(a) of the Enforcement of
H          Security Interest and Recovery of Debts Laws (Amendment) Act,
                                        896
PRATIBHA RAMESH PATEL v. UNION OF INDIA AND ORS.                                 897
                  [KURIAN, J.]

   2012, which has since been notified on 3rd of January, 2013 and               A
   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
                                                                                  B
   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,          c
   and in doing so in contravention ofArticle 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;
                                                                                 D
    (b) To declare that, between Securitisation and Reconstruction of
    Financial Assets and Enforcement of Securities Interest Act, 2002
    (as amended) an~ .the Multi-State Co-operative Societies Act,
    2002, provisions of the latter Act will prevail for recovery of
    purpo1ted amount due to/from a Co-operative Society or a Member
    or Borrower thereof and vice versa, and that the former Act stands            E
    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              F
    Interest Act, 2002, and sub-sections 2( d)(vi) and I 9( I A) 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 SA RFAES! Act, 2002;                        G
    (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,
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898      SUPREME COURT REPORTS                              (2016] 2 S.C.R.



A     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-i/T-1/Crimina!Nashi/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 issu_ed by
      Divisional Official, Belapur, (Annexure ·'P2" and Annexure "P3")
B
      as without jurisdiction, in violation of the principles ofnaturaljustice,
      section 91 and 91 A 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
c     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;
 D
      (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, Ali bag dated
      30/06/2014 (Annexure "PI" purportedly under section I 4 of the
 E    SA RFAES I Act, 2002 in Case No. 18/2014 as null and void, being
      in violation of the principles ofnaturaljustice;
      (f) To issue an appropriate writ, order or direction, declaring that
      the respondent banks which are guilty ofbrcach of contract, civil
      breach of trust, culpable negligence, and malicious and tortuous
 F    action and therefore no right or title has inured in them tci invoke
      sections 5, 6 and 7 much less section 13(2) of the SARFAESI
      Act, 2002, and that in any scenario the.regiondent 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
 G    in section 2(zf) of the SARFAESJ 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 ofnatural
      justice, is liable to be read into sections 5, 6 and 7 of the SARFAESI
      Act, 2002 and in particularly section 6 thereof.

 H
PRATIBHA RAMESH PATEL v. UNION OF INDIA AND ORS.                             899
                  [KURIAN, J.]

    (g) issue a writ of prohibition or any other appropriate writ or         A
    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 ofinstitution
    of a petition as against the petitioner company or by taking recourse
                                                                              B
    to the statutory powers vested in them under sett ion 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;                                      c
    (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            D
    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. I 0.2013 purportedly under
    Section 13(2) of the Securitisatiort and Reconstruction ofFinancial
    Assets and Enforcement of Security interest Act, 2002, and
    impugned order of the Ld. District Magistrate, dated 30/06/2014           E
    purportedly under Section I 4 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       F
    13 of the Securitisation and Reconstruction gfFinancial 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        G
    the Securitisation and Reconstruction of Financial Assets and
    Enforcement of Security Interest Act, 2002 and the Security
    Interest.
    U) pass any other order or orders which this Hon'ble Court may
    deem fit and proper under the facts and circumstances of the              H
900            SUPREME COURT REPORTS                            [2016] 2 S.C.R.



A           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,
 B    the High Court passed the following interim order:-
            "Not on Board. Mentioned.
            2.Having heard Mr. Nedumpara, learned counsel appearing for
            tlle petitioner and since our attention is invited to the communication
            at pages 59 and 60 of the paper book, we pass the following
 c          order:-
             i. Issue notice to Respondent Nos. I and 2 returnable on 4th
             December, 20 I 5.
            ii. On the condition thatthe petitioner deposits a sum equivalent of
            50% of the amount claimed by respondent Nos. I and 2 with
 D
            Respondent No. I 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 of2014.
 E
             iii. Ifthe 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."
 F
             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
 G    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 oflndia, seeking a declaration that the measures under
 H           Sections 13 and 14 of the SARFAESI Act, 2002 are void ab initio.
PRATIBHA RAMESH PATEL v. UNION OF INDIA AND ORS.                                  901
                  [KURIAN, J.]

       The Hon'ble High Court, Bombay was pleased to admit the said                A
       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
                                                                                   B
        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 oflndia before this Hon 'hie Court .... "
       6. In I.A. No.2 of2016, the Respondent No.2 has produced copy
of the Writ Petition No. 3145 of2015 filed by the writ petitioner before
                                                                                   c
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              D
Constitution oflndia 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           E
been admitted by the Court, the High Court having granted an interim
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, ifnot misuse.
                                                                                   F
        l 0. Having invoked a constitutional remedy before the High Court
under Article 226 of the Constitution oflndia, the petitioner cannot, under
Law, file another petition under Article 32 of the Constitution oflndia on
iden_tical set of facts for identical reliefs.
       11. In the above circumstances, this writ petition is dismissed with        G
costs of Rs. l ,00,000/- (rupee_ one lakh only) to be deposited with the
Supreme Comt Legal Services committee within four weeks.
Nidhi Jain                                             Writ Petition dismissed.

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