LexPRATIBHA RAMESH PATEL versus UNION OF INDIA AND ORS.
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[2016] 2 S.C.R. 896
PRATIBHA RAMESH PATEL
v.
UNION OF INDIA AND ORS.
(Writ Petition (Civil) No.35 of20J 6)
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.
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
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 of facts for identical relief
- 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 J 6.
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
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
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Security Interest and Recovery of Debts Laws (Amendment) Act,
896
PRATIBHA RAMESH PATEL v. UNION OF INDIA AND ORS.
[KURIAN, J.]
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) 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
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 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 RF AES! 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,
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