Yash Food Processor vs State Bank Of India
2021 Latest Caselaw 2406 MP

                                  1

        THE HIGH COURT OF MADHYA PRADESH
                   WP-7392-2021
(YASH FOOD PROCESSOR VS. THE STATE BANK OF INDIA AND OTHERS )



JABALPUR
 DATED : 15.06.2021
      Shri Ashish Anand Bernard, learned counsel for the
petitioner.
      Shri Vivek Shukla, learned counsel for the respondent No.1

has raised a preliminary objection that an alternative remedy of appeal is available against the impugned auction.

Learned counsel appearing for the petitioner submits that since Rule 9 of the Security Interest (Enforcement) Rules, 2002 has been violated and requisite time gap of 30 days was not adhered to, therefore, the auction is liable to be set aside in view of the judgments of the Supreme Court in the case of Mathew Varghese Vs. M. Amritha Kumar and others, (2014) 5 SCC 610 and J. Rajiv Subramaniyan and another vs. Pandiyas and others, (2014) 5 SCC 651, therefore, alternative remedy will not act as a bar in deciding the appeal.

As against this, the submission of learned counsel for the respondent is that due notice was given and it's a case covered by proviso to Rule 9.

We have heard the learned counsel for the parties on the preliminary objection.

It is not in dispute that the petitioner has remedy of filing an appeal under Section 17 of the SARFAESI Act. No justifiable reason has been pointed out by counsel for the petitioner to bypass the said statutory remedy. In the present case, the issue of applicability of Rule 9(1) or its proviso is involved. The judgment which the counsel for the petitioner is relying upon is prior to the amendment in Rule 9(1). In these circumstances, we are of the

opinion that it will be more appropriate for the petitioner to avail the remedy of appeal instead of directly approaching this Court by way of present writ petition.

Hence, the writ petition is dismissed with liberty to the petitioner to avail the remedy of appeal.

                  (PRAKASH SHRIVASTAVA)                       (VIRENDER SINGH)
                        JUDGE                                       JUDGE
DV



Digitally signed by
DINESH VERMA
Date: 2021.06.18
16:41:11 +05'30'