Amitabh Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 1968 MP

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   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 PRAKASH CHANDRA GUPTA

             ON THE 3rd OF FEBRUARY, 2023

             WRIT PETITION No. 30321 of 2022

BETWEEN:-
AMITABH SHARMA S/O SHRI LATE KRISHNADEV SHARMA FOR
PROPRIETORSHIP M/S AMIT ENGINEERING EQUIPMENTS, AGED
ABOUT 65 YEARS, OCCUPATION: BUSINESS, HOUSE NO. 90 OLD NO.
181, RADIO COLONY, GANDHI PARK, DISTRICT INDORE (MADHYA
PRADESH)
                                            .....PETITIONER
(SHRI SHANTNU CHOURASIA, ADVOCATE FOR THE PETITIONER)


AND
   THE STATE OF MADHYA PRADESH THROUGH THE COLLECTOR,
1. COLLECTOR OFFFICE, FIRST FLOOR, NEW ADMINISTRATIVE
   COMPELX, DISTRICT INDORE (MADHYA PRADESH)
   IDFC FIRST BANK THROUGH DIRECTORS KRM TOWER, 7TH
   FLOOR, NO.1 HARRINGTON ROAD, CHETPET, CHENNAI, BRANCH
2. ADDRESS 111, 1ST FLOOR, TULSI TOWER, SOUTH TUKOGANJ,
   STREET NO.01, GEETA BHAWAN SQUARE, A.B. ROAD, INDORE
   (MADHYA PRADESH)
    DEBT RECOVERY TRIBUNAL, 797/2, SHANTI KUNJ, SOUTH CIVIL
3.
    LINES, JABALPUR (MADHYA PRADESH)
                                          .....RESPONDENTS
(SHRI AAKASH SHARMA, GOVERNMENT ADVOCATE FOR THE
RESPONDENT NO.1/STATE)
(SHRI MALLIKARJUN KHARE, ADVOCATE FOR THE RESPONDENT NO.2)
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      This petition coming on for admission this day, JUSTICE
SUSHRUT ARVIND DHARMADHIKARI passed the following:
                                 ORDER

Heard on the question of admission as well as on interim relief. The petitioner has filed this petition under Article 226 of Constitution of India seeking following reliefs :-

"1. To quash impugned order dated 10/08/2022 by DM Court for being obtained by fraud alone;

2. To quash impugned order dated 10/08/2022 by DM Court for being barred by Order 23 Rule 1 of CPC;

3. To quash impugned order dated 20/12/2022 of Hon'ble DRT for being obtained by fraud alone;

4. To quash impugned order dated 20/12/2022 of Hon'ble DRT for being barred by Order 23 Rule 1 of CPC;

5. Any order of further appropriate relief, order writ or direction as this Hon'ble Court may think appropriate considering the facts and circumstances of the case in the interest of justice."

Preliminary objection is raised by the learned counsel for the respondents to the effect that impugned order is appealable under Section 18 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.

Learned counsel for the respondents relied on the judgment of Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others (2014) 15 SCC 44 in which it is held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam

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(2017) 8 SCC 611 the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others (2016) 13 SCC 305 it is held that when there statutory appeal is provided, then the said remedy has to be availed.

In view of the aforesaid and also looking to the fact of availability of an efficatious alternative remedy, we do not find it proper to entertain this petition, accordingly petition is hereby dismissed. However, petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised.

(S.A. DHARMADHIKARI)                    (PRAKASH CHANDRA GUPTA)
                 JUDGE                                JUDGE

Aiyer*
Digitally signed by
JAGDISHAN AIYER
Date: 2023.02.08
16:46:48 +05'30'