M/S Shri Krishnan Tradings A ... vs Union Bank Of India Through Its ...
2023 Latest Caselaw 2192 MP

                                                             1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                       WP No. 3300 of 2023
                              (M/S SHRI KRISHNAN TRADINGS A PROPRIETORSHIP CONCERN THROUGH ITS PROPRIETOR
                          ANSHUMAN KRISHNAN SITUATE AND OTHERS Vs UNION BANK OF INDIA THROUGH ITS AUTHORISED
                                                           OFFICER AND OTHERS)

                          Dated : 07-02-2023
                                Shri A.M. Mathur, learned Sr. Advocate with Shri Rajesh Maindiretta and
                          Shri Sagar Soni, Advocates for the petitioners.
                                Shri   R.S. Chabra, learned Sr. Advocate with Shri Rohit Sharma,
                          Advocate for the caveator.
                                Shri Anand Bahrawat learned counsel for the respondent no.1 and 2 on

advance notice.

Shri Bhaskar Agrawal, learned Govt. Advocate for the respondent no. 3 and 4 on advance notice.

Heard on the question of admission and interim relief. This petition under Article 226/227 of the Constitution of India assails the order dated 03.02.2023 passed in S.A. No. 96/2022 by the Debt Recovery Tribunal, Jabalpur permitting the respondent no. 3 to participate in the auction conducted on 20.01.2022 whereby the mortgaged properties of petitioners were

put to auction by the respondent/bank.

Learned Sr. counsel appearing for the petitioners submitted that in the present case, the guarantor purchased the properties in question in collusion with the bank. Only the secured creditors can purchase the property in auction. The learned Debt Recovery Tribunal has exceeded its jurisdiction and did not consider the fact that there is no provision under the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( for short SARFAESI Act, hereinafter) which permits the guarantor to Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/7/2023 6:50:20 PM

participate in the auction and only exception is that secured creditor u/S 13(5) (A) of the SARFAESI Act can purchase the property.

On the other hand, learned Sr. counsel appearing for the guarantor contended that the statutory alternative remedy u/S 18 of the SARFAESI Act is available to the petitioners and without availing the same, they have approached this Court. He further submitted that the arguments advanced by learned counsel for the petitioners are dehors the pleadings. Therefore, the petition deserves to be dismissed.

Learned Sr. counsel appearing for the petitioners with regard to objection in respect of statutory alternative remedy relied upon the judgment of Apex

Court in the case of Red Chilly International Sales Vs. Income Tax Officer & Another reported in 2023 Live Law (SC) 16 and submitted that the Apex Court has held that alternative remedy is not a bar and without taking into consideration several judgments of the Apex Court and without making any deeper and in depth consideration, the writ petition cannot be thrown out on the ground of alternative remedy. However, the High Courts would examine the issue in depth and if the same arises for consideration, then the plea of alternative remedy cannot be a bar. The Apex Court in number of cases has held that alternative remedy is not a bar to entertain the writ petition.

Taking into consideration, the fact that prima-facie learned Debt Recovery Tribunal has exceeded its jurisdiction, this Court over rules the objection raised by the respondents.

Issue notice to respondents.

Shri Anand Singh Bahrawat accepts notice on behalf of respondent no. 1 and 2.

Shri Rohit Sharma accepts notice on behalf of caveator. Signature Not Verified Signed by: SEHAR HASEEN Signing time: 2/7/2023 6:50:20 PM

Shri Bhaskar Agrawal accepts notice on behalf of respondent no.4 and 5. By way of interim measure, status-quo with regard to the properties in question shall be maintained by the parties till the next date of hearing.

Reply be filed within a period of four weeks.

List the case in the week commencing 13.03.2023. C.C. as per rules.

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

                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 2/7/2023
6:50:20 PM