Madhya Pradesh High Court
Balkrishna Shah vs Idfc First Bank Ltd. Through Its ... on 23 July, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 WP-20175-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 23rd OF JULY, 2024
WRIT PETITION No. 20175 of 2024
BALKRISHNA SHAH
Versus
IDFC FIRST BANK LTD. THROUGH ITS AUTHORIZED OFFICER
AND OTHERS
Appearance:
Shri Akshat Pahadiya, counsel for the petitioner.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari Heard on the question of admission & interim relief. This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-
(1) That, the Hon'ble Court be pleased to issue the writ in the nature of Certiorari quashing the notice dated 02.07.2024 issued by the respondent No.3.
(2) That, the Hon'ble Court be pleased to issue the writ in the nature of Certiorari quashing order dated 25.01.2021 passed by the Additional District Magistrate, Indore in Case No./179/B- 121/19-20.
(3) The Hon'ble Court be further pleased to issue a writ in Signature Not Verified Signed by: SREEVIDYA Signing time: 24-07- 2024 19:02:33
2 WP-20175-2024 the nature of mandamus, prohibition directing/restraining not to interfere with the possession of the petition over the property and further be restrain from taking possession of the property.
(4) Costs of this petition be awarded to the petitioner. (5) Any other relief, which the Hon'ble Court deems fit in the facts and circumstances of the case, be granted to the petitioner.
02. The brief facts of the case are that the petitioner and one Ashalata Shah had jointly purchased property Shop No. G-2, Prabhu Vandana Apartment, Fg3-34, Scheme No. 54, Vijay Nagar, Indore. Ashalata Shah went behind the back of the petitioner and availed some credit facility from the respondent No.1 against equitable mortgage of the said property, which she failed to honor. Therefore, respondent No.1 has initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "the SARFAESI Act"). When the petitioner came to know about the action of the respondent No.1, he informed that the property belong to the petitioner and he has not availed any loan nor mortgaged the property. The respondent No.3 vide impugned notice dated 02.07.2024 has directed to tender physical possession of the property. At the outset, learned counsel for the petitioner submits that for redressal of the same grievance, petitioner has availed the alternative remedy and filed Securitization Application No.325/2022 before the Debt Recovery Tribunal, Jabalpur but the case is pending consideration. He further submits that the DRT will not be functioning from 18.07.2024 to 26.07.2024 and the Signature Not Verified Signed by: SREEVIDYA Signing time: 24-07- 2024 19:02:33 3 WP-20175-2024 petitioner's stay application is still pending. Hence, this petition.
03. It is an undisputed fact that the petitioner has already availed the alternative remedy by filing the Securitization Application No. 325/2022 before the DRT, Jabalpur and the same is pending for adjudication.
04. The Apex Court in the case of ICICI Bank Limited and others v/s Umakanta Mohapatra & Others reported in (2019) 13 SCC 497 has held as follows:-
"2. Despite several judgments of this Court, including a judgment by Hon'ble Navin Sinha, J., as recently as on 30-1-2018, in State Bank of Travancore v. Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41], the High Courts continue to entertain matters which arise under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), and keep granting interim orders in favour of persons who are nonperforming assets (NPAs).
3. The writ petition itself was not maintainable, as a result of which, in 2view of our recent judgment, which has followed earlier judgments of this Court, held as follows:
''17. We cannot help but disapprove the approach of them High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. [Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P)Ltd.,(1997) 6 SCC 450], observing:
32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.''
4. The writ petition, in this case, being not maintainable, obviously, all orders passed must perish, including the impugned order, which is set aside.
5. The appeals are allowed in the aforesaid terms. Pending applications, if any shall stand disposed of.''
05. Apart from this, the Apex Court in the case of Kalabharti Advertising v/s Hemant Vimalnath Narichania & Others reported in (2010) 9 Signature Not Verified Signed by: SREEVIDYA Signing time: 24-07- 2024 19:02:33 4 WP-20175-2024 SCC 437 has poignantly held as under:-
"22. It is a settled legal proposition that the forum of the writ court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (vide:State of Orissa v. Madan Gopal Rungta, AIR1952SC 12;Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305;State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685; State of Bihar v. Rambalak Singh "Balak" & Ors., AIR1966SC1441; and Premier Automobiles Ltd.v . Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238)."
06. Recently, the Apex Court in the case of M/s South Indian Bank Limited & Others v/s Naveen Mathew Philip & Another Etc Etc reported in 2023 Livelaw (SC) 320 has deprecated the practice adopted by the High Courts whereby the writ petitions are being entertained in Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act hereinafter) matters, especially against the private banks when the statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by the writ Court. The litigant cannot avoid the non- compliance of approaching the Tribunal which requires the prescription of fee and use of constitutional remedy as an alternative. The Apex Court has also deprecated the practice of approaching the High Court for consideration of an offer by the borrower.
07. The Apex Court in the case of M/s South Indian Bank Ltd.(supra) further went on to hold that "we deprecate such practice of entertaining the writ petitions by the High Court in exercise of power under Article 226 of the Constitution of India without exhausting the alternative remedy available under the law."
Signature Not Verified Signed by: SREEVIDYA Signing time: 24-07- 2024 19:02:335 WP-20175-2024
08. In the light of the aforesaid pronouncements of the Apex Court, this Court is not inclined to entertain the writ petition considering the fact that the Securitization Application No.325/2022 is already pending before the learned DRT, Jabalpur and no parallel proceedings for the redressal of the same grievance can be continued, therefore the present petition being bereft of merit and substance is hereby dismissed.
No order as to cost.
(SUSHRUT ARVIND DHARMADHIKARI) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
vidya
Signature Not Verified
Signed by: SREEVIDYA
Signing time: 24-07-
2024 19:02:33