Madhya Pradesh High Court
M/S Balaji Bakery Through Mukesh Sharma vs Additional District Magistrate on 30 April, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 30th OF APRIL, 2024
WRIT PETITION No. 11499 of 2024
BETWEEN:-
M/S BALAJI BAKERY THROUGH MUKESH SHARMA 128, MAHATMA
GANDHI MARG, GALI NO. 02, BARWANI (MADHYA PRADESH)
.....PETITIONER
(SHRI ASHUTOSH NIMGAONKAR, ADVOCATE)
AND
ADDITIONAL DISTRICT MAGISTRATE COLLECTOR OFFICE,
1. BARWANI (MADHYA PRADESH)
INDIAN BANK, THROUGH AUTHORIZED OFFICER CUM CHIEF
MANAGER OFFICE AT 4, R.N.T. MARG, SHREEVARDHAN COMPLEX,
2.
INDORE (MADHYA PRADESH)
NANURAM LODHA S/O SHRI CHUNNI LAL OCCUPATION: BUSINESS
3. ASHAGRAM ROAD, BARWANI (MADHYA PRADESH)
TEHSILDAR TEHSIL BARWANI, COLLECTOR OFFICE, BARWANI
4. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ANIKET NAIK, DEPUTY ADVOCATE GENERAL)
____________________________________________________________________
__________________________________________________________
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 30-04-2024
18:38:50
2
This petition coming on for admission this day, Justice Sushrut
Arvind Dharmadhikari passed the following:
___________________________________________________________
ORDER
Heard on the question of admission and interim relief.
In this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 18/06/2020, passed by the respondent No.1.
2. Being aggrieved, the petitioner has filed the present petition seeking for the following reliefs:
"(a) Issue directions to the Ld. DRT, Jabalpur to maintain status-quo in respect to the recovery actions taken under Act, 2002.
(b) The entire actions of the Respondent No.2 Bank under Section 13 (4) & (14) of the SARFAESI Act, 2002 is quashed and set-aside.
(c) Quash and set-aside "Order Passed Ld. Additional district Magistrate, Barwani in case No.0081/B-
121/2019-20 under section 14 of the Act, 2002 dated 18/06/2020.
(d) Quash and set-aside the eviction notice issued by the Tehsildar, Tehsil barwani dated 08/01/2024 in execution of order passed by the Ld. Additional district Magistrate, Barwani under section 14 of the Act, 2002.
(e) Quash and set-aside the registry executed in the name of auction purchaser vide dated 28/02/2024.
(f) Quash and set-aside the entire auction proceedings conducted by the Respodent Bank.
(g) To grant stay on any coercive action being taken by the bank in pursuance of the order issued by the Ld Additional District Magistrate under section 14 of the act, 2002 till the time the petitioner approaches the Hon'ble DRT, Jabalpur which at present is Non-
functioning.
Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 3(h) Any other relief(s), which this Hon'ble Court may deem fit to be granted to the Petitioners under the facts and circumstances of the present case."
3. Brief facts of the case are that the petitioner had applied for loan from the respondent no.2 Bank and by way of accepting the proposal, the respondent No.2 has disbursed the loan of Rs.4,23,000/- on 19.07.2015, Rs.1,51,000/- on 25.02.2016, Rs.9,75,000/- on 18.07.2016 and Rs.2,25,000/- on 28.10.2016 : total Rs.17,74,000/- to the petitioner. A loan agreement was executed between the petitioner and the respondent no.2 and the petitioner mortgaged the house situated at Balaji Bakery, Settlement No.80, Block Barwani, Kasba Barwani, Survey No.270/2, Nimar Motors Service Centre, Rajghat Road, Barwani, Madhya Pradesh towards security of the said loan.
4. After taking such financial assistance, the monthly installments were regularly paid by the petitioner to respondent No.2. Due to financial crisis, some installments could not be paid to the respondent no.2 during Covid Pandemic due to which the respondent No.2 has declared the loan account as Non-Performing Asset(NPA). Thereafter, the respondent Bank has issued notice under Section 13(4) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (referred to as "SARFAESI Act" hereinafter) to get possession of the questioned property. Thereafter, the Bank has filed an application under Section 14 of the SARFAESI Act before the respondent No.1. Notices were issued to the petitioner and the same could not be served thus, the petitioner was not aware of the said proceedings because of wrong address mentioned in the petition alongwith affidavit and notices issued by the respondent no.1. Vide order dated 18.06.2020, an order has been passed by the respondent no.1 wherein it was directed to hand over Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 4 the possession of House in question to the respondent no.2. The respondent no.2 has filed a case with regard to the SARFAESI Act, on other hand respondent bank had produced cheque for recovery of loan amount and the same was presented before the bank without giving any intimation to the petitioner and also issued notice after dishonour of the said cheque under the Negotiable Instruments Act, 1881 wherein it was not mentioned that the petitioner loan account had been declared NPA and the proceedings of recovery has been initiated against the petitioner.
5. Learned counsel for the petitioner submitted that the order passed by respondent is wholly illegal and is arbitrary and is passed on the basis of fraudulent documents. The respondent has neither issued the notice under Section 13(2) of the SARFAESI Act to the petitioner nor the same has been served/received by the petitioner. The respondent No.2 mentioned wrong address in the application under Section 14 of the SARFAESI Act due to which the notice issued by the respondent no.1 was not served upon the petitioner. Thus, the petitioner was not aware about the proceedings initiated by the respondents which resulted into passing of an ex-parte order. It is further submitted that no opportunity of hearing was provided to the petitioner while passing the impugned order, which is in violation of principles of natural justice. The respondent no.2 has misled the respondent no.1 by giving false information. The petitioner is not wilful defaulter and he is regularly depositing the loan amount. The respondent no.1 committed a grave error in declaring the account of the petitioner as NPA and filed application under Section 14 of the SARFAESI Act. The petitioner has been in possession of the property by way of registered deed despite of that respondent is claiming ownership over the property in question. Hence, the present petition may be allowed and the orders passed by the respondent no.1 be set- aside/quashed.
Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 56. Per contra, learned Deputy Advocate General for the respondents/State has raised a preliminary objection as to the maintainability of petition, in as much as that this Court lacks jurisdiction to hear the petition filed under Article 226 of the Constitution. He further submitted that even otherwise, the petitioner has availed an alternative remedy by filing the Securitization Application under Section 17 before the DRT. In catena of cases, it has been held that where there is an alternative efficacious remedy is present in such cases the High Court shall refrain from exercising its writ jurisdiction. However, without knowing the outcome of the said application, the petitioner has directly approached this Court wasting the precious time of this Court. Hence, the petition deserves to be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. It is an undisputed fact that the petitioner has already availed the alternative remedy by filing the Securatization Application No.120/2022 before the DRT, Jabalpur and the same is pending for the further adjudication.
9. The Apex Court in the case of ICICI Bank Limited and others Vs.Umakanta Mohapatra and others[(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)."Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 6
3.The writ petition itself was not maintainable, as a result of which, in view of our recent judgment, which has followed earlier judgments of this Court, held as follows:(SCC p. 94, para 17)
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: (SCC p.463, para 32).
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."
(Emphasis supplied)
10. Apart from this, the Apex Court in the case of Kalabharti Advertising V. Hemant Vimalnath Narichania and Others (2010) 9 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 Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 7 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)."
11. Recently, the Apex Court in the case of M/S South Indian Bank Ltd. & Ors. Vs. Naveen Mathew Philip & Anr. Etc Etc [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.
12. 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 u/S 226 of the Constitution of India without exhausting the alternative remedy available under the law."
Signature Not Verified Signed by: JAGADISHAN AIYER Signing time: 30-04-2024 18:38:50 813. 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 Securatization Application No.120/2022 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.
(S.A. Dharmadhikari) (Gajendra Singh)
Judge Judge
Aiyer*
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 30-04-2024
18:38:50