Madhya Pradesh High Court
Mr. Dilip Jain vs Court Commissioner Appointed By Ld. ... on 25 July, 2024
Author: Shushrut 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 DUPPALA VENKATA RAMANA
ON THE 25th OF JULY, 2024
WRIT PETITION No. 20256 of 2024
MR. DILIP JAIN AND OTHERS
Versus
COURT COMMISSIONER APPOINTED BY LD. CHIEF JUDICIAL
MAGISTRATE AND OTHERS
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Appearance:
Ms. Yashi Maheshwari- Advocate
Shri Bhuwan Gautam- Govt. Advocate
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ORDER
Per: Justice Shushrut Arvind Dharmadhikari Heard on the question of admission and interim relief. In this petition filed under Article 226/227 of the Constitution of India, the petitioner has prayed for the following reliefs:
" i. To direct the Respondent HFL to keep in abeyance any execution of order passed by the Ld. Chief Judicial Magistrate, Indore under Section 14 of the Act, 2002.2
ii. Quash and set aside "Order Passed Ld. Chief Judicial Magistrate, Indore in case No. MJCR-1097/2024 under Section 14 of the Act, 2002 dated 22.06.2024.
iii. To grant stay on any coercive action being taken by the Respondent HFL in pursuance of the order issued by the Ld. Chief Judicial Magistrate, Indore under Section 14 of the Act, 2002 till the time the petitioner approaches the Hon'ble DRT, Jabalpur which at present is Non-functioning.
iv. Alternatively grant breathing time to the petitioners to obtain Ad- interim protection in Securitization Application under Section 17 of the Act, 2002 before the Hon'ble DRT- Jabalpur against the impugned order.
v. To direct the Ld. DRT, Jabalpur to take the Securitization application filed by the petitioner on priority and dispose the same expeditiously.
vi. Any other relief(s), which this Hon'ble Court may deem fit to be granted to the petitioner under the facts and circumstances of the present case."
2. Brief facts of the case are that Respondent/Bank has advanced a loan to the petitioner for meeting out his financial requirements on mortgage of immovable property situated at Plot and House No. R1, X5, Scheme No. 71, Sector C, Indore (M.P.)- 452001 owned by Mr. Dilip Jain S/o Shri Babulal Jain bounded as under:- East- Road, West- Plot No. 19, North- Plot No. 4 and South- Plot No. 6. The respondent/Bank has initiated action under SARFAESI Act, 2002 by issuing notice under Section 13(2) of the Act, 2002, purportedly classifying the subject borrowal account as NPA on a wrong footing on 08.11.2023. In view of non-service of notice under Section 13(2) of the Act of 2002 r/w Rule 3 of Rules, 2002, all the actions of the Respondent/Bank are null & void ab-initio. Thereafter, the respondent/Bank has served the symbolic possession notice dated 19.02.2024 under Section 13(4) of the Act, 2002. Against the said order of symbolic possession, the petitioner raised his objections with regard to the action taken by the respondent/Bank under Section 13(4) of the Act, 2002 which is invalid as per the mandated provisions of Act, 2002. Against the said notice, petitioner filed S.A. No. 895/2024 before the Debts Recovery Tribunal, Jabalpur (referred to as 'DRT' hereinafter), which is pending consideration due to non-
3availability of the Presiding Officer at Ld. DRT- Jabalpur and in-charge Ld. Presiding Officer at Ld. DRT- Allahabad would take a considerable long time to hear the matter. Being aggrieved, the petitioner filed the present writ petition.
3. Learned counsel for the petitioner submitted that the Respondent/Bank has not served a valid notice under Section 13(2) dated 24.11.2023 to borrowers/ guarantors of the credit facilities. The premise or edifice of NPA classification of borrower account, on which the notice has been served is on wrong footing, since is on perverse NPA classification. The application to be filed under Section 17 of the Act, 2002 before the Ld. Debt Recovery Tribunal, Jabalpur is suffering delay due to non functioning of the Tribunal as per the notification issued by the Hon'ble Debt Recovery Tribunal, Jabalpur. Hence, the instant petition may be allowed.
4. We have heard learned counsel for petitioner and perused the record.
5. From the pleadings as well as the arguments , it appears that the said petition has been filed only seeking protection against dispossession. Hence, we find no reason to entertain this petition when the petitioner have already availed efficacious statutory alternative remedy to approach the Debts Recovery Tribunal, Jabalpur.
6. 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 4 assets (NPAs)."
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 the 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)
7. 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 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, AIR 1952 SC 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., AIR 1966 SC 1441; and Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238).
8. Recently, the Apex Court in the case of M/S South Indian Bank 5 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 SARFAESI Act 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 noncompliance 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.
9. 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."
10. 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 S.A. No. 895/2024 is already pending before DRT for adjudication over the same issue.
11. Accordingly, the same is hereby dismissed.
No order as to costs.
(SUSHRUT ARVIND DHARMADHIKARI) (DUPPALA VENKATA RAMANA)
JUDGE JUDGE
Vatan
VATAN SHRIVASTAVA
2024.07.25 17:47:49 +05'30'