Manipur High Court
Shri Oinam Somorendro Meetei Aged About … vs Shri Mayengbam Tej Singh Aged About 39 … on 27 March, 2026
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
KABORAMBA Digitally
KABORAMBAM
signed by
M SANDEEP SANDEEP SINGH
Date: 2026.04.01
SINGH 20:05:07 +05'30'`
REPORTABLE
Sl. No. 3-5
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 52 of 2018
1. Shri Oinam Somorendro Meetei aged about 51 Years, S/o
(L) Oinam Mani Singh, a resident of Wangkhei Khunou,
near Citizen Club, P.O. Imphal, P.S. Porompat, Imphal
East District, Manipur 795001.
2. Shri Thokchom Arunkumar aged about 47 Years, S/o
Thokchom Jugol Singh, a resident of Thangmeiband
Thingel Leikai, P.O. Imphal, P.S. Lamphel, Imphal West
District, Manipur - 795001.
Appellants
Vs.
1. Shri Mayengbam Tej Singh aged about 39 Years, S/o M.
Shrilal Singh, Propreitor, M/s M.S. & Sons, Singjamei
Mayengbam Leikai, P.O. & P.S. Singjamei, Imphal West
District, Manipur 795001.
Private Respondent/writ petitioner
2. The Central Bank of India represented by its Branch
Manager, M.G. Avenue, Thangal Bazar, P.O. & P.S.
Imphal, Imphal West District, Manipur-795001.
3. The Chief Manager, Central Bank of India, Regional
Office, Shaktigarh Path, GS Road, 3rd Floor Central
Bank, Bhangagarh, Guwahati - 781005.
Official Respondents
With
MC [W.P. (C)] No. 362 of 2018
Mayengbam Tej Singh, aged about 39 years old, S/o M.
Shrilal Singh, Proprietor, M/S M.S & Sons, Singjamei
Mayengbam Leikai, P.O. & P.S. Singjamei, Imphal West
District, Manipur - 795008.
Applicant
Page 1 of 35
Vs.
1. The Central Bank of India, represented by its Branch
Manager, Imphal Branch, M.G. Avenue, Thangal Bazar,
Imphal West District, Manipur - 795001.
2. The Chief Manager, Central Bank of India, Regional
Office, 3rd Floor Central Bank, Bhangagarh,
Guwahati - 5.
3. Oinam Somorendro Meetei, aged about 51 years, S/o
late Oinam Mani Singh, a resident of Wangkhei Khunou,
near citizen Club, P.O. & P.S Porompat, Imphal East
District, Manipur-795001.
4. Thokchom Arunkumar, aged about 47 years, S/o
Thokchom Jugol Singh, a resident of Thangmeiband
Thingel Leikai, P.O. Imphal, P.S. Lamphel, Imphal West
District, Manipur-795001.
Respondents
With
W.A. No. 61 of 2018
1. Central Bank of India, represented by its Branch
Manager, Imphal Branch, M.G. Avenue, Thangal Bazar,
Imphal West District, Manipur.
2. The Chief Manager, Central Bank of India, Regional
Office, 3rd Floor Central Bank, Bhangagarh, Guwahati-5
Appellants/Respondent No. 1 & 2
Vs.
1. Mayengbam Tej Singh, aged about 39 years, S/o M.
Shrilal Singh, Proprietor, M/s M.S. & Sons, Singjamei,
Imphal West District, Manipur.
2. Oinam Somorendro Meetei, S/o Late Oinam Mani Singh,
a resident of Wangkhei Knunou, near citizen club, P.O
& P.S. Porompat, Imphal East District, Manipur.
3. Thokchom Arunkumar, S/o Thokchom Jugol Singh, a
resident of Thangmeibamd Thingel Leikai, P.O. Imphal,
P.S. Lamphel, Imphal West District, Manipur.
Respondents
Page 2 of 35
BEFORE
HON'BLE THE CHIEF JUSTICE MR. M. SUNDAR
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For appellants in W.A. No. 52 of 2018 Mr. Md. Abdul Baqee Khan,
Advocate, led by Mr. N. Jotendro, Sr.
Advocate
For respondents in W.A. No. 52 of 2018 Mr. Anjan Prasad Sahu along with Mr.
Nakato Khwairakpam, Advocate for
respondent No. 1
Mr. Mukesh Sharma, Advocate for
respondent Nos. 2 & 3
For appellants in WA No. 61 of 2018 Mr. Mukesh Sharma, Advocate
For respondents in W.A. No. 61 of 2018 Mr. Anjan Prasad Sahu along with Mr.
Nakato Khwairakpam, Advocate for
respondent No. 1
Mr. Md. Abdul Baqee Khan, Advocate
for respondent Nos. 2 & 3, led by Mr.
N. Jotendro, Sr. Advocate
For applicant in MC [W.P. (C)] No. 362 of 2018 Mr.Anjan Prasad Sahu along with Mr.
Nakato Khwairakpam, Advocate
For respondents in MC [W.P. (C)] No. 362 of 2018 Mr. Mukesh Sharma, Advocate for
respondent Nos. 1 & 2,
Mr. Md. Abdul Baqee Khan, Advocate
for respondent Nos. 3 & 4, led by Mr.
N. Jotendro, Sr. Advocate
Date of Judgment & Order 27.03.2026
COMMON JUDGMENT AND ORDER
(ORAL)
(M. Sundar, CJ)
[1] Captioned two main ‘Writ Appeals’ (‘WAs’ in plural and ‘WA’
in singular for the sake of brevity) are directed against the same order.
The order that has been assailed in both WAs is an order dated 09.10.2018
made by a Hon’ble Single Bench of this Court in W.P. (C) No. 227 of 2018
Page 3 of 35
and this order shall be referred to as ‘impugned order’ for the sake of
convenience and clarity. Subject matter of caption WAs pertain to a ‘One
Time Settlement’ (‘OTS’ for the sake of brevity) between a Nationalized
Bank and a borrower and sale of the immovable property of borrower
(given as security for loan) by the Bank in an auction to third-party auction
purchasers. To be noted, this Court will dilate more on facts elsewhere
infra in this common order which will govern the captioned two WAs and
captioned ‘Miscellaneous Case’ (‘MC’ for the sake of brevity).
[2] W.A. No. 52 of 2018 has been filed by the auction purchasers
and WA No.61 of 2018 has been filed by the Nationalized Bank both
assailing the impugned order (as already alluded to supra). As regards the
captioned MC, the same has been taken out by the borrower, post
impugned order but pending captioned WAs with a prayer to permit the
borrower to deposit the OTS amount by way of a cheque (to be noted, a
photocopy of the full OTS amount settlement cheque has been annexed
to the MC).
[3] Reverting to factual matrix and central theme of lis qua
captioned WAs and MC, one ‘Mayengbam Tej Singh, son of M. Shrilal
Singh, Propreitor, M.S. & Sons’ (hereinafter ‘borrower’ for the sake of
convenience) sometime in 2012 availed cash credit facility to the tune of
about Rs. 45,000,00/- (Rupees Forty Five lakhs) from ‘the Central Bank of
India, Imphal Branch, Manipur’ (hereinafter ‘said Bank’ for the sake of
convenience and clarity); that the account became ‘NPA’ (‘Non-Performing
Page 4 of 35
Asset’ for the sake of brevity); that the borrower filed a writ petition in
W.P. (C) No.173 of 2017 regarding this account, i.e, NPA; that this ‘writ
petition’ (‘WP’ for the sake of brevity) came to be disposed of by a Hon’ble
Single Bench in and by a short order dated 24.04.2017 recording the stated
positions of learned counsel for said Bank and learned counsel for
borrower (borrower submitted that he would pay the outstanding amount
in a timeframe of one month to which the Bank counsel agreed); that the
one month time frame is from the date of receipt of a copy of the order
which was on 03.05.2017 and this further means that the one month time
frame elapsed on 03.06.2017; that thereafter said bank on 25.01.2018
came up with a OTS proposal making it clear that it is a special OTS
scheme, borrower’s account (NPA) is eligible under the special OTS
scheme, a sum of Rs. 41,25,000/- (Rupees Forty One Lakh & Twenty Five
Thousand) should be deposited as ‘full and final settlement’ and that this
offer is valid up to 31.03.2018; that according to said Bank, on 29.01.2018,
it wrote a letter to the borrower altering the special OTS cut-off date, viz.,
advancing the cut-off date from 31.03.2018 to 10.02.2018 but there is
serious dispute about this letter having been served on the borrower; that
while the borrower contended that this letter was never received by him,
said Bank contended that the Chief Manager of said Bank went over to the
borrower’s place, found the borrower somewhere near the ‘place’
(described as ‘land’) and attempted to give it to the borrower but the
borrower refused to receive the same (there will be a little more
elaboration on this elsewhere infra in this order) but suffice to write that
Page 5 of 35
this was the bone of contention and the crux and gravamen of the issue
in the writ petition before the Hon’ble Single Judge; that on 21.02.2018,
the borrower sent an e-mail to said Bank inter alia referring to the OTS
offer and saying that said Bank has in the interregnum, inter alia resorted
to taking possession of immovable property given as security on
16.02.2018, much before the 31.03.2018 cut-off but making it clear that
the borrower is accepting the OTS offer and he is ready to settle as per
the OTS offer made on 25.01.2018; that on the very next day, the Chief
Manager of the said Bank had written a letter (obviously letter dated
22.02.2018) bearing Reference No. CBI/IMP/2017-18/00177 inter alia
stating that the borrower has lost his right of redemption; that in this
22.02.2018 letter there is a reference to an earlier letter dated 25.01.2018
from the said Bank bearing letter No. IMP/SARFAESI/2017-18/1449A but
that letter vide which said Bank claims that it intimated the borrower that
said immovable property is being put up for auction and borrower has lost
his right of redemption has not been placed before this Court (either before
the Hon’ble Single Bench or before this Division Bench); that thereafter
the borrower filed W.P. (C) No. 227 of 2018 on 22.03.2018 inter alia
assailing (a) the 22.02.2018 communication cancelling the special OTS
proposal and (b) a e-auction notice dated 16.02.2018; that this writ
petition, after full contest came to be allowed by a Hon’ble Single Bench
in and vide the impugned order; that in this W.P. (C) No.227 of 2018, said
Bank represented by its Branch Manager and Chief Manager of said Bank
were arrayed as respondent Nos. 1 and 2 respectively and the two auction
Page 6 of 35
purchasers were arrayed as respondent Nos. 3 & 4; that for completion of
facts, it is deemed appropriate to write that details of the immovable
property (which has been given as security by the borrower) is Dag
No.1019, Patta No.59/342(pt)(Old) 255 (New), situate in Imphal West
District, Mauza Oinam Thingel Revenue Village No.59 admeasures an Area
0.0233 Hectare or thereabouts (to be noted, this description is as per the
e-auction sale notice dated 16.02.2018 which was put to challenge in the
writ petition); that contending that they are aggrieved by the impugned
order, the auction purchasers have filed captioned W.A. No. 52 of 2018
and said Bank has filed captioned W.A. No.61 of 2018 as already alluded
to supra; that for further completion of facts, it is deemed appropriate to
write that inter alia by an order dated 17.01.2019 made by Hon’ble
predecessor Bench, the impugned order of Hon’ble Single Bench has been
stayed pending captioned Writ Appeals and that the same is now
operating.
[4] In the hearing today, Mr. N. Jotendro, learned senior counsel
instructed by Mr. Md. Abdul Baqee Khan, learned counsel on record for
auction purchasers, Mr. Mukesh Sharma, learned counsel for said Bank
and Mr. Anjan Prasad Sahu, learned counsel along with Mr. Nakato
Khwairakpam, for the borrower are before this Court.
[5] Mr. N. Jotendro, learned senior counsel who commenced the
submissions, notwithstanding very many/myriad grounds in the WA
Page 7 of 35
memorandum, predicated his campaign against the impugned order on
two points and the two points are as follows:
(a) There is no mention about the earlier WP filed by the
borrower namely, W.P. (C) No. 173 of 2017 and this
according to learned senior counsel is suppression and
that it casts serious doubts qua the bonafides of the
borrower is his further say;
(b) remedy for the borrower is by way of approaching the
‘Debt Recovery Tribunal’ (‘DRT’ for the sake of brevity)
and on the teeth of alternative remedy, the borrower
ought not to have filed the WP which culminated in the
impugned order and the WP is not maintainable is his
further say.
To be noted, in reply submissions, learned senior counsel
submitted that third party interests have been created and that the rights
of the auction purchasers are jeopardized leaving the auction purchasers
in difficulty.
[6] As regards learned counsel for said Bank, learned counsel
heavily relied on afore-referred communication dated 22.02.2018 bearing
Reference No. CBI/IMP/2017-18/00177 from the Chief Manager of said
Bank to buttress his submission that the OTS has been withdrawn. It was
also submitted that on the teeth of DRT and ‘Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest
Page 8 of 35
Act, 2002′ (54 of 2002) (‘SARFAESI Act‘ for the sake of brevity and
convenience) the WP is not maintainable.
[7] As regards the borrower, it was submitted that the DRT was
approached, i.e., DRT Guwahati, but Registry of DRT refused to even
entertain the borrower’s application and thereafter the writ petition was
filed.
[8] This Court now embarks upon the legal drill of setting out
the points urged, discussion on the same and giving its dispositive
reasoning one after the other and an adumbration of the same is as
follows:
(i) The first point turns on earlier WP and the
borrower not mentioning about the earlier WP in the WP
which culminated in the impugned order. In the
considered view of this Court, this cannot be construed
as suppression for more than one reason. The reasons
are, after the order in the earlier WP dated 24.04.2017
and after the one month timeframe thereat elapsed on
03.06.2017, said Bank made the special OTS offer on
25.01.2018. This is clearly novation (earlier short order
only records the stated position of parties) and therefore
the earlier order does not operate for any/all practical
purposes as between the parties, i.e, the borrower and
the said Bank. Be that as it may, the other reason is, if a
Page 9 of 35
fact has not been mentioned, the party not mentioningthe fact should have gained from not mentioning the fact
or it should have been done with the intention of getting
a gain and only in such an event the omission will amount
to suppression, otherwise it will remain as omission. In
any event, the said Bank was put on notice in the
subsequent WP which culminated in the impugned order
and all facts were placed before Hon’ble Single Bench
before the impugned order was rendered. Therefore, this
Court is of the considered view that this point as regards
not mentioning the earlier WP and order dated
24.04.2017 thereat pales into insignificance.
(ii) This takes this Court to the alternative remedy point.
As regards alternative remedy, the law is well settled that
alternative remedy rule is not an absolute rule and it is a
rule of discretion. It is also well settled that it is a self-
imposed restraint qua writ courts/writ jurisdiction. This
Court (though noticed at the Bar in the hearing) reminds
itself that in a long line of authorities starting from
Dunlop India case [Assistant Collector of Central
Excise, Chandan Nagar, West Bengal Vs. Dunlop
India Ltd. and others reported in (1985) 1 SCC 260]
rendered on 30.11.1984, Satyawati Tondon case
Page 10 of 35
[United Bank of India Vs. Satyawati Tondon and
others reported in (2010) 8 SCC 110] rendered on
26.07.2010, Commercial Steel case law [Assistant
Commissioner of State Tax and Others Vs.
Commercial Steel Limited (Civil Appeal No. 5121
of 2021)] reported in (2022) 16 SCC 447 rendered
on 03.09.2021, Mathew K.C. case [Authorized
Officer, State Bank of Travancore and Another Vs.
Mathew K.C. reported in (2018) 3 SCC 85] rendered
on 30.01.2018 and State of Maharashtra and Others
Vs. Greatship (India) Limited reported in 2022 SCC
OnLine SC 1262 rendered on 20.09.2022, Hon’ble
Supreme Court has repeatedly held that threshold barrier
is stiff in fiscal law statutes qua alternative remedy Rule
but all these case laws recognize the principle that
alternative remedy Rule is not an absolute Rule, it is a
Rule of discretion and it is a self-imposed restraint qua
writ courts. Be that as it may, the case at hand is not one
arising under fiscal law.
In this regard, this Court deems it appropriate to
respectfully follow Whirlpool principle (which has come
to stay in legal parlance as Whirlpool exceptions) being
principle laid down by Hon’ble Supreme Court in
Page 11 of 35
Whirlpool Corporation Vs. Registrar of Trade
Marks, Mumbai and Others reported in (1998) 8 SCC
1 rendered on 26.10.1998. On facts, in Whirlpool, the
Registrar of Trade Marks suo moto issued a ‘Show Cause
Notice’ (‘SCN’ for the sake of brevity) calling upon the
noticee to show cause as to why the certificate of
registration of Trade Mark should not be cancelled inter
alia owing to a competing/rival claim qua the Trade Mark
concerned. This SCN was assailed by the noticee
(Whirlpool Corporation) in Bombay High Court, the
challenge was unsuccessful and the matter was carried to
Hon’ble Supreme Court. In this factual backdrop, Hon’ble
Supreme Court carved out specific exceptions qua
alternative remedy after making it clear that the power to
issue prerogative writs under Article 226 of the
Constitution is plenary and besides the specific writs
mentioned in Article 226, it can be exercised for ‘any other
purpose’. In dealing with alternative remedy, Hon’ble
Supreme Court dealt with earlier decisions describing the
same to be decisions rendered in the evolutionary era of
constitutional law and made it clear that exceptions to
alternative remedy qua Article 226 include cases (a) where
the writ petition seeks enforcement of any of fundamental
rights; (b) where there is violation of principles of natural
Page 12 of 35
justice; (c) where the order or the proceedings are wholly
without jurisdiction; and (d) where the vires of an Act is
challenged. To be noted, in Whirlpool, relevant
paragraphs are paragraphs 14 and 15 which read as
follows:
’14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature
and is not limited by any other provision of the
Constitution. This power can be exercised by the
High Court not only for issuing writs in the nature of
habeas corpus, mandamus, prohibition, quo
warranto and certiorari for the enforcement of any of
the Fundamental Rights contained in Part III of the
Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the case,
has a discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself
certain restrictions one of which is that if an effective
and efficacious remedy is available, the High Court
would not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this
Court not to operate as a bar in at least three
contingencies, namely, where the writ petition has
been filed for the enforcement of any of the
Fundamental Rights or where there has been a
violation of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged. There
is a plethora of case-law on this point but to cut down
this circle of forensic whirlpool, we would rely onPage 13 of 35
some old decisions of the evolutionary era of the
constitutional law as they still hold the field.’In the above paragraph 15 of Whirlpool, though
there is a reference to three contingencies, four
exceptions have been adumbrated. This Court
respectfully writes that the exceptions are four in number
by following a later judgment of Hon’ble Supreme Court
in Godrej Sara Lee Ltd. vs. Excise and Taxation
Officer-cum-Assessing Authority and Others
reported in (2023) SCC OnLine SC 95 (2023 INSC
92) rendered on 01.02.2023 where Hon’ble Supreme
Court reiterated Whirlpool and made it clear that
Whirlpool carves out four exceptions to alternative
remedy qua writ jurisdiction.
Godrej Sara Lee on facts is one where
assessment orders under the ‘Haryana Value Added Tax
Act, 2003‘ (‘Haryana VAT Act‘ for the sake of brevity)
were called in question on the teeth of an alternative
remedy of appeal vide Section 33 of Haryana VAT Act. In
this factual background, Hon’ble Supreme Court
reiterated Whirlpool and also Commercial Steel
Limited (to be noted, this Court has respectfully
referred to Commercial Steel Limited supra for the
principle that alternative remedy Rule is not an absolute
Page 14 of 35
Rule). The relevant paragraphs in Godrej Sara Lee are
paragraphs 6, 7 & 8 and the same read as follows:
‘6. At the end of the last century, this court in
paragraph 15 of its decision reported in (1998) 8
SCC 1 (Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai) carved out the exceptions on the
existence whereof a writ court would be justified
in entertaining a writ petition despite the party
approaching it not having availed the alternative
remedy provided by the statute. The same read
as under:
(i) where the writ petition seeks
enforcement of any of the fundamental
rights;
(ii) where there is violation of principles of
natural justice;
(iii) where the order or the proceedings are
wholly without jurisdiction; or
(iv) where the vires of an Act is challenged.
7. Not too long ago, this court in its decision
reported in [2021] SCC Online SC 884 (Assistant
Commissioner of State Tax v. Commercial Steel
Limited)” has reiterated the same principles in
paragraph 11.
8. That apart, we may also usefully refer to
the decisions of this Court reported in (1977) 2
SCC 724 (State of U. P. v. Indian Hume Pipe Co.
Ltd.) and (2000) 10 SCC 482 (Union of India v.
State of Haryana). What appears on a plain
reading of the former decision is that whether a
certain item falls within an entry in a sales tax
statute, raises a pure question of law and if
Page 15 of 35
investigation into facts is unnecessary, the High
Court could entertain a writ petition in its
discretion even though the alternative remedy
was not availed of; and, unless exercise of
discretion is shown to be unreasonable or
perverse, this Court would not interfere. In the
latter decision, this court found the issue raised by
the appellant to be pristinely legal requiring
determination by the High Court without putting
the appellant through the mill of statutory appeals
in the hierarchy. What follows from the said
decisions is that where the controversy is a purely
legal one and it does not involve disputed
questions of fact but only questions of law, then it
should be decided by the High Court instead of
dismissing the writ petition on the ground of an
alternative remedy being available.’
This Court also deems it appropriate to write that
even before Godrej Sara Lee, Hon’ble Supreme court in
the oft quoted Ambuja Cement case [State of H.P. and
Others vs. Gujarat Ambuja Cement Ltd. and
Another reported in (2005) 6 SCC 499] rendered on
18.07.2005 reiterated Whirlpool principle/Whirlpool
exceptions. Ambuja Cement, on facts, is a case where
action taken by Sales Tax Authorities and revisional orders
setting aside assessment orders under the ‘Central Sales
Tax Act, 1956‘ (‘CST Act‘ for the sake of brevity) and the
‘Himachal Pradesh General Sales Tax Act, 1968‘ (‘HPGST
Act’ for the sake of brevity) were questioned inter alia on
Page 16 of 35
the ground of exemptions. In resisting such a challenge,
it was contended by State that alternative remedy was
available to the assessee under CST Act as well as HPGST
Act and therefore the revisional orders ought not to have
been challenged by way of a writ petition. While dealing
with this alternative remedy plea, Hon’ble Supreme Court
reiterated Harbanslal Sahnia principle [Harbanslal
Sahnia and Another vs. Indian Oil Corpn. Ltd. and
Others reported in (2003) 2 SCC 107] rendered on
20.12.2002. To be noted, Harbanslal Sahnia principle is
one where Hon’ble Supreme Court held that alternative
remedy is a Rule of discretion and not one of compulsion
and it is further to be noted that Harbanslal Sahnia
followed and reiterated Whirlpool. Relevant paragraph in
Ambuja Cement is paragraph 20 and the same reads as
follows:
’20. In Harbanslal Sahnia v. Indian Oil Corpn.
Lid. this Court held that the rule of exclusion of writ
jurisdiction by availability of alternative remedy is a
rule of discretion and not one of compulsion and the
Court must consider the pros and cons of the case
and then may interfere if it comes to the conclusion
that the petitioner seeks enforcement of any of the
fundamental rights; where there is failure of
principles of natural justice or where the orders or
proceedings are wholly without jurisdiction or the
vires of an Act is challenged.’Page 17 of 35
(iii) In this regard, this Court also deems it
appropriate to write that Article 226 was amended by
42nd Amendment in 1976 (w.e.f. 01.02.1977) by
inserting clause (3) which made alternative remedy a bar
for exercise of jurisdiction under Article 226 but within
30 months by the 44th Amendment in 1978 (w.e.f.
01.08.1979), this clause (3) was deleted. This by itself
makes it clear that alternative remedy is not a bar for the
constitutional remedy under Article 226. In this regard,
this Court deems it appropriate to write that there is a
brief mention about this 42nd Amendment in Ambuja
Cement adverted to supra, the relevant paragraph is
paragraph 17 and the most relevant portion of paragraph
17 in this regard reads as follows:
’17. We shall first deal with the plea regarding alternative
remedy as raised by the appellant State. Except for a
period when Article 226 was amended by the Constitution
(Forty-second Amendment) Act, 1976, the power relating
to alternative remedy has been considered to be a rule of
self-imposed limitation. It is essentially a rule of policy,
convenience and discretion and never a rule of law.
Despite the existence of an alternative remedy it is within
the jurisdiction of discretion of the High Court to grant
relief under Article 226 of the Constitution …’
Page 18 of 35
(iv) While on alternative remedy, it is deemed appropriate
to write that learned counsel for said Bank relied on CELIR
LLP vs. Bafna Motors (Mumbai) Private Limited and
Others (‘CELIR-I’ for the sake of convenience) reported in
(2024) 2 SCC 1 and CELIR LLP vs. Sumati Prasad
Bafna and others (‘CELIR-II’ also for the sake of
convenience) reported in 2024 SCC OnLine SC 3727 for
the propositions (a) interference by Court is not warranted
unless the auction procedure is found to be collusive,
fraudulent or vitiated and (b) equity cannot supplant law,
respectively. This Court respectfully writes that CELIR-I and
CELIR-II do not come to the aid of said Bank as they are
clearly distinguishable on facts. In both these case laws, it is
not a case of OTS. In this regard, this Court deems it
appropriate to remind itself of the celebrated Padma
Sundara Rao case law [Padma Sundara Rao (Dead)
and others Vs. State of Tamil Nadu and Others reported
in (2002) 3 SCC 533] wherein a Hon’ble Constitution Bench
of the Supreme Court laid down the manner in which
authorities and precedents cited should be referred to. To be
noted Padma Sundara Rao was rendered by a Constitution
Bench and therefore, this Court chooses to use the
expression ‘declaration of law’ rather than ‘ratio’. On facts,
Padma Sundara Rao arose under Land Acquisition Act,
Page 19 of 35
1894 and the question was, after the land acquisitionproceedings are nullified, whether a fresh period will be
available to the State for making a declaration under Section
6. In this fact setting, in Padma Sundara Rao, Hon’ble
Supreme Court after reiterating what Lord Morris wrote in
Herrington vs. British Railways Board [(1972) 2 WLR
537] held that there is always peril in treating the words of
speech of judgments as legislative enactment and that the
fact situation is of utmost importance with regard to placing
reliance on case laws. Hon’ble Supreme Court is also very
clear that circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions in
two cases. The relevant paragraph in Padma Sundara Rao
is para 9 and the same reads as follows:
‘9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits
in with the fact situation of the decision on which
reliance is placed. There is always peril in treating the
words of a speech or judgment as though they are
words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the
setting of the facts of a particular case, said Lord
Morris in Herrington v. British Railways Board.
Circumstantial flexibility, one additional or different
Page 20 of 35
fact may make a world of difference betweenconclusions in two cases’
(v) Following the declaration of law made in Padma
Sundara Rao, this Court respectfully writes that CELIR-I
and CELIR-II on facts are distinguishable and do not come
to the aid of the said Bank as on facts they do not turn on
OTS. Another case law relied on by learned counsel for said
And others reported in 2024 SCC OnLine SC 4589. This
is also for the principle that sale by way of public auction
should not be set aside until there is any material irregularity
or irregularity committed in holding that auction. Sanjay
Sharma again is distinguishable on facts as it does not
pertain to OTS. Learned counsel for said Bank also pressed
into service Bijnor Urban Cooperative Bank Limited,
Bijnor and others Vs. Meenal Agarwal and others
reported in (2023) 2 SCC 805 for the proposition that
borrower cannot claim OTS as a matter of right. Applying
Padma Sundara Rao declaration of law made by Hon’ble
Supreme Court, Bijnor also does not come to the aid of said
Bank as Bijnor is a case where on facts the borrower was
ineligible qua the conditions of OTS. In the case on hand, the
Page 21 of 35
25.01.2018 OTS offer from said Bank makes it clear that the
borrower is eligible for the special OTS. Therefore, it is not a
case of borrower claiming OTS as a matter of right but it is a
case of OTS having been offered to the borrower by said
Bank, making it clear that borrower’s account (NPA) is
eligible, further making it clear, it is open till 31.03.2018 and
thereafter turning topsy turvy and making a U-turn by
advancing date, not being able to demonstrate that this
communication was served on borrower, later contending
that they sent two letters to borrower on same day
(25.01.2018) one offering OTS and another saying that
borrower has lost right of redemption and ultimately selling
the immovable in public action to third party auction
purchasers. Therefore, this court has no hesitation in writing
that the instant case is clearly covered by more than one of
the Whirlpool exceptions being a case of complete violation
of procedural fairness which is a core pillar of principle of
natural justice. To elaborate on this, to be noted, said Bank
wrote two letters to the borrower on the same day, one
offering OTS and saying borrower is eligible and further
saying that borrower can pay the full and final settlement on
or before 31.03.2018 and another letter saying that borrower
Page 22 of 35
has lost his right of redemption. In this regard that a scanned
reproduction of 25.01.2018 OTS letter is as follows:
There is a reference to another letter on the same
day, i.e., 25.01.2018 bearing letter no. IMP/SARFAESI/2017-
18/1449A in said Bank’s letter dated 22.02.2018 and
Page 23 of 35
a scanned reproduction of this 22.02.2018 letter is asfollows:
‘
The 3rd paragraph in the above letter refers to
another letter dated 25.01.2018 and for the sake of emphasis
and ease of reference, the afore-refereed 3rd paragraph
Page 24 of 35
is set out infra in bold and the same is as follows:
‘We have already informed you vide
our letter no. IMP/SARFAESI/2017-18/1449A
dated 25/01/18 that your mortgaged property
has been put for e-auction on 16.02.2018, but
you have shown your aggression towards
action of the Bank under SARFAESI Act. Not to
forget, that you broke open the locks and keys
two times (11.01.2017 and 20.06.2017), when
the Bank took physical possession of the
mortgaged property, which clearly shows your
unwillingness and irrational attitude
regarding payment of outstanding dues and
the way you abuse the process of law.’[vi] This Court deems it appropriate to write that afore-
referred conduct of said Bank besides being a clear case
of violation of procedural fairness which is one of the core
principles of natural justice, is also covered by another
Whirlpool exception, viz., being proceedings wholly
without jurisdiction as a Nationalized Bank after having
offered a OTS to a borrower and holding that the OTS
offer is valid till 31.03.2018 cannot on the same day write
to the borrower that his right of redemption has been lost
and subsequently contend that the cut-off date was
advanced to 10.02.2018 that too without being able to
demonstrate communication dated 29.01.2018 in this
Page 25 of 35
regard was served on writ petitioner. To be noted, learnedcounsel for said Bank was unable to cite any provision of
law, be it in the Reserve Bank of India Act, 1934 (2 of
1934) or for that matter in any other statute.
(vii) To complete the discussion on alternative
remedy and comprehensively capture what transpired in
the hearing, it is also appropriate to write that learned
counsel for borrower pressed into service PHR Invent
Educational Society Vs. UCO Bank and Others
reported in 2024 INSC 297 to say that exception for
petitions under Article 226 of the Constitution have been
clearly laid down and one of the exceptions is when the
statutory authority has not acted in accordance with the
provisions of enactment in question, learned counsel for
said Bank submitted that reference to statutory authority
in PHR Invent is to the Tribunals i.e., DRT and the
DRAT. To be noted in PHR Invent, Hon’ble Supreme
Court has in paragraph 29 carved out 4 exceptions and
in paragraph 33 has also reiterated Satyawati Tondon
which we have referred to supra. Paragraphs 29 and 33
of PHR Invent read as follows:
’29. It could thus clearly be seen that the
Court has carved out certain exceptions when a
petition under Article 226 of the ConstitutionPage 26 of 35
could be entertained in spite of availability of an
alternative remedy. Some of them are thus:
(i) where the statutory authority has not
acted in accordance with the provisions of
the enactment in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions
which are repealed; and
(iv) when an order has been passed in total
violation of the principles of natural justice.
33. While dismissing the writ petition, we will
have to remind the High Courts of the following
words of this Court in the case of Satyawati
Tondon (supra) since we have come across
various matters wherein the High Courts have
been entertaining petitions arising out of the DRT
Act and the SARFAESI Act in spite of availability of
an effective alternative remedy:
“55. It is a matter of serious concern that despite
repeated pronouncement of this Court, the High
Courts continue to ignore the availability of
statutory remedies under the DRT Act and the
SARFAESI Act and exercise jurisdiction
under Article 226 for passing orders which have
serious adverse impact on the right of banks and
other financial institutions to recover their dues.
We hope and trust that in future the High Courts
will exercise their discretion in such matters with
greater caution, care and circumspection.”
It is necessary to make it clear that PHR Invent
is also a case which does not turn on OTS. Therefore,
this Court deems it appropriate to write that for the
purpose of the legal drill at hand, it will suffice to
respectfully follow the principle laid down by Hon’ble
Supreme Court that alternative remedy Rule is not an
Page 27 of 35
absolute Rule and it is a Rule of discretion and
respectfully follows Whirlpool principle about which
discussion and dispositive reasoning of this Court has
been set out/alluded to supra in this order, it is a self-
imposed restraint. Be that as it may another buttressing
factor in this regard is, in the case on hand, the borrower
has approached the DRT Guwahati and has made a
positive averment in this regard in the WP in paragraph
13 which reads as follows:
’13. That, the petitioner had also approached the
DRT, Guwahati also as per the
statement/submission made in para No.20 in the
affidavit-in-opposition in W.P.(C) No. 173 of 2017
by the Respondent Bank but the Registry of the
Debt Recovery Tribunal, Guwahati situated at B.
Baruah Road Apsara Building, Ulubari, Guwahati
informed the petitioner that the Debt Recovery
Tribunal, Guwahati has no jurisdiction to entertain
the application of the petitioner and hence did not
register it.’
(viii) This Court had mentioned in the earlier part of
this order that there will be more allusion about the letter
dated 29.01.2018 by which the said Bank contends that
it had advanced the cut-off date qua special OTS from
31.03.2018 to 10.02.2018. In this regard, the Hon’ble
Single Bench called for an affidavit from said Bank and
an affidavit was filed by the Chief Manager of said Bank.
Page 28 of 35
In this affidavit, the Chief Manager in paragraphs 3 & 4
of the affidavit has averred as follows:
‘3. That, in the meantime, One Rajesh Kumar,
Chief Manager, Central Bank of India, Zonal
Office, came to Imphal. In the afternoon of 25-01-
2018, I along with, Rajesh Kumar, R.M. and
Okram Raju Singh, Recovery Agent, SMART to
circulate/hand over the above-mention
Notice/Letter to loan defaulters including
Mayengbam Tej Singh. Mayengbam Tej Singh was
found in the vicinity of the land mortgaged with
the Central bank. I have personally handed the
letter to Mayengbam Tej Singh and request to
acknowledge received. But, Mayengbam Tej Singh
refused to acknowledge receipt:
4. That, in the morning of 29-01-2018, I have
received instructions from the Zonal office that
since the date of E-auction has been fixed on 16-
02-2018, the last date of OTS fixed on 31-03-2018
be changed to 10-02-2018 and to intimate to
Mayengbam Tej Singh. I have prepared a letter
No. CBI/IMP/RECV/2017-18/00152 A dated 29-
01-2018 making necessary changes as per
instructions of the Zonal Office. I along with
Okram Raju went to deliver the letter in the
evening of 29-01-2018. Mayengbam Tej Singh
was found near the mortgaged land and handed
over the letter to him and requested to
acknowledge receipt. Mayengbam Tej Singh
reluctantly took the letter but declined to
acknowledge receipt.’
Page 29 of 35
The Hon’ble Single Bench has disbelieved the
above version making it clear that it is not entering upon
any disputed facts in a writ petition. The Hon’ble Single
Bench has made it clear in the impugned order that when
the said Bank contends that 29.01.2018 letter has been
served on the borrower and the borrower submits that
he has not received any such letter, the onus lies on the
said Bank to prima facie demonstrate that the letter was
delivered to the borrower rather than making mere
assertions. In the light of inconsistencies, after also
noticing that it is rather strange that the Chief Manager
had gone to the borrower’s place, Hon’ble Single Bench
has not accepted the mere assertion of said Bank which
is not supported by any prima facie material qua
service/acknowledgment. This Court therefore finds that
there is no reason to interfere with this reasoning of the
Hon’ble Single Bench. The most relevant paragraph in
this regard is paragraph 10 of the impugned order and
the same reads as follows:
‘[10] In the present case, this Court would have
been satisfied if the corroborating affidavit of the
person, namely, Okram Raju, had been also
enclosed to show that the Bank had delivered the
letter dated 29.01.2018 to the petitioner. Secondly,
it is quite unusual that the Chief Manager himselfPage 30 of 35
would go to a loanee to deliver a letter which is
normally done either by registered post or some
other modes of communication, which is generally
resorted to by the Bank authorities. Therefore, this
Court is of the view that the claim made by the Bank
that the said letter dated 29.1.2018 had been
delivered to the petitioner, falls short of the proof
required and accordingly, this Court is not inclined
to accept the plea of the Bank. If that is so, this
Court would hold that the letter dated 29.1.2018
had not been delivered to the petitioner. In that
event, the subsequent proceeding including e-
auctioning initiated by the bank authorities cannot
be said to be valid. In that view of the matter, this
Court holds that the e-auction held by the bank
authorities was illegal and was done by changing
the rules of the game as mentioned above.’We wholly agree with the Hon’ble Single Bench
and we have no hesitation in writing that there is no
reason to interfere with the order the Hon’ble Single
Bench. Learned counsel for said Bank submitted that
after the SARFAESI Act regime, the Chief Manager do go
to the borrower’s place for service but we deem it
appropriate to not dilate upon the same owing to the
averments in paragraph 3 & 4 of the affidavit of Chief
Manager.
(ix) As regards the submission of learned senior
counsel that the auction purchasers have been left high
and dry as they availed financial assistance for
Page 31 of 35
purchasing the auctioned property in public auction,have also put up superstructures there but the auctioned
purchasers’ account has now become NPA, this Court
deems it appropriate to write that the remedy of the
auction purchasers will only be against the said Bank and
all questions in this regard are left open. In this regard,
it is also deemed appropriate to write that this Bench has
noticed that the Hon’ble Single Bench has also given a
direction to said Bank to refund the money to the auction
purchasers which is vide paragraph 13 of the impugned
order which reads as follows:
‘[13] In view of the above, this Court holds that the
petitioner has been able to make out a case in his
favour and e-auction which was held on 16.02.2018
is declared illegal as the petitioner was denied the
opportunity to clear his debt as mentioned above and
the natural consequence is that if the petitioner is still
willing to clear the debt, he will be entitled to regain
possession of the said mortgaged property from the
Bank on payment of the due amount within a period
of 2 (two) months from today. The private
respondent Nos. 3 & 4, who had purchased the
mortgaged property have to return the mortgaged
land to the Bank and would be entitled to be
refunded of the purchased price from the Bank paid,
to the Bank including any incidental charges as they
cannot derive any benefit out of an illegal
transaction.’Page 32 of 35
This, in the considered opinion of this Court,douses the argument of the auctioned purchasers that
they have been left high and dry.
(x) Learned counsel for borrower placed reliance on
‘the Security Interest (Enforcement) Rules 2002’ (‘said
Rules’ for the sake of convenience and clarity) {which is
a piece of subordinate legislation made by Central
Government in exercise of Rule making powers vide
Section 38 of the SARFAESI Act}, to say that adequate
30 days public notice for the auction was not given.
Learned counsel relied on Rules 8(6) and Rule 9(1).
Learned counsel for said Bank refuted the submission by
saying that this will not apply to subsequent auctions.
This Court deems it appropriate to not to dilate on this
as the case at hand turns on OTS. Therefore, we also
deem it appropriate not to dilate on Rajiv
Subramaniyan case [J. Rajiv Subramaniyan and
another. Vs. Pandiyas and others] reported in
(2014) 5 SCC 651 relied on by learned counsel for
borrower which turns on Rules 8 and 9 of said Rules. To
be noted, the Hon’ble Single Bench has not gone into the
question of auction or the procedure followed for the
auction but the crux and gravamen of the legal drill
Page 33 of 35
turned on OTS being offered to borrower and contending
that cut-off date was altered and alteration of date was
communicated to the borrower which has been
disbelieved by the Hon’ble Single Bench as no prima facie
material qua service/acknowledgment was placed before
it on the teeth of borrower contending that the
communication was not received by him.
[9] This takes this Court to the captioned MC. The captioned
MC has been filed on 06.12.2018, post impugned order, pending captioned
WAs. To be noted, W.A. No. 52 of 2018 filed by auction purchasers was
filed on 12.11.2018 and W.A. No. 61 of 2018 filed by said Bank has been
filed on 27.11.2018. In captioned MC, the borrower has made a prayer to
permit deposit of the special OTS amount of Rs. 41,25,000/- (Rupees
Fourty One Lakh and Twenty Five Thousand) by way of a cheque a
photocopy of which has been annexed to the MC. In this regard, there was
a contention by the learned counsel for said Bank that in and vide the
impugned order, there is a direction for payment of ‘outstanding dues’
within two months. This Court finds that the writ petition has been filed
on 22.03.2018 in this Court well before the cut-off date of 31.03.2018 and
as already alluded to supra, the order of the Hon’ble Single Bench has
been stayed by way of an interim stay and the same is operating. In any
event, the communication dated 22.02.2018 from the said Bank stating
that the right of redemption has been lost about which there is allusion
Page 34 of 35
supra has been set aside vide the impugned order. Impugned order has
to be understood in sum totality of all these facts. Therefore, we deem it
appropriate to dispose of the captioned MC as closed leaving it open to
the parties to abide the impugned order which we are confirming.
[10] The impugned order is sustained. [11] Ergo, the sequitur in the light of the narrative, discussion and
dispositive reasoning set out supra is, both captioned WAs fail and the
same are dismissed. As regards the captioned MC, the same is disposed
of as closed. Consequently, the afore-referred interim order staying the
operation of Hon’ble Single Bench order now operating is vacated. There
shall be no order as to costs.
JUDGE CHIEF JUSTICE FR/NFR John Kom/Sandeep P.S. I : Upload forthwith
P.S. II : All concerned will stand bound by web copy uploaded in High Court
website inter alia as the same is QR coded.
Page 35 of 35
