Jyoti Tomar vs Collector
2023 Latest Caselaw 2308 MP

                                                        1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                              HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
                                           ON THE 9 th OF FEBRUARY, 2023
                                           WRIT PETITION No. 10761 of 2022

                          BETWEEN:-
                          JYOTI TOMAR W/O RAJENDRA PAWAR, AGED ABOUT
                          33 YEARS, OCCUPATION: HOME MAKER HOUSE NO. 6
                          BHOLENATH COLONY INDORE (MADHYA PRADESH)

                                                                                .....PETITIONER
                          (SHRI VIVEK PHADKE, LEARNED COUNSEL WITH SHRI RISHI
                          SHRIVASTAVA, LEARNED COUNSEL FOR THE PETITIONER)

                          AND
                          1.    STATE OF M.P. THROUGH COLLECTOR INDORE
                                (MADHYA PRADESH)

                          2.    THE AUTHORISED OFFICER UJJIVAN SMALL
                                FINANCE BANK PLOT NO. 17-A, GROUND FLOOR
                                AND 1ST FLOOR, JAORA COMPOUND, NEAR
                                TEMPO STAND, INDORE (MADHYA PRADESH)

                          3.    MR. MANISH TOMAR S/O SHRI KISHAN LAL
                                TOM AR HOUSE NO. 153, BHOLENATH COLONY,
                                NEAR SABJI MANDI, KALANI NAGAR, INDORE
                                (MADHYA PRADESH)

                          4.    MRS. LAXMI TOMAR W/O SHRI MANISH TOMAR
                                HOUSE NO. 153, BHOLENATH COLON, NEAR SABJI
                                MANDI, KALANI NAGAR, INDORE (MADHYA
                                PRADESH)

                                                                              .....RESPONDENTS
                          (SHRI BHASKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR THE
                          RESPONDENT NO.1/STATE)
                          (SHRI SAMEER KUMAR SHRIVASTAVA, LEARNED COUNSEL FOR THE
                          RESPONDENT [R-2].

                                This petition coming on for admission this day, JUSTICE SUSHRUT
Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 2/13/2023
7:36:06 PM
                                                              2

                          ARVIND DHARMADHIKARI passed the following:
                                                              ORDER

Heard finally, with the consent of the parties.

2. In this writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality, validity and propriety of the order dated 18.08.2021(Anexure-P/5) passed by the respondent No.2 by which the proceedings under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(herein after referred to as .. "the Act of 2002")have been initiated against the property owned by the petitioner.

3. The brief facts leading to filing of the case are that the petitioner had purchased the house in question situated at House No.6, Bholenath Colony, village Sitapur, Pargana, Tehsil and District Indore(M.P.) vide registered sale- deed dated 30.05.2017 from the respondent Nos.3 and 4. After execution of the registered sale-deed, the respondents No.3 and 4 mortgaged the said house to the respondent No.2 without having any title in the property whatsoever and obtained loan from the Bank. The Bank without any verification took the property under mortgage from the respondents No.3 and 4 for which the petitioner cannot be made to suffer. A private complaint has also been filed against the respondents No.3 and 4 to show their bonafides. The petitioner also submitted a complaint against the respondent No.2/Bank before the Banking Ombudsman. However, no action was taken either by the police authorities or by the banking ombudsman, therefore, the petitioner had filed a private complaint before the learned Judicial Magistrate First Class, Indore(M.P.) which is pending adjudication. Even after issuance of notice and preferring of the private complaint, the respondent No.2 has affixed a notice under Section 13(2) Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

of the Act on the property owned by the petitioner on 06.04.2022. The petitioner preferred a representation before the Bank requesting the Bank to consider the factual aspect of the case. However, no head has been paid by the respondent No.2. Hence, this petition.

4. Per Contra, Shri Sameer Kumar Shrivastava, learned counsel appearing for the respondent No.2 vehemently opposed the prayer and raised the preliminary objection as to maintainability of the writ petition under Article 226 of the Constitution of India on the ground of availability of efficacious alternative remedy under Section 17 of the Act before the Debt Recovery Tribunal(DRT). Neither any relief has been claimed against the State of Madhya Pradesh nor there are any pleadings against the respondent No.1/Sate, therefore, it is clear that just in order to file the writ petition, the Government has been made a party. The respondent No.2 is not State within the meaning of Article 12 of the Constitution of India. The other two respondents are also not State within the meaning of Article 12 of the Constitution of India. The respondent No.2 is purely a private Bank which does not fall within the meaning of Article 12 of the Constitution of India. The disputed question of facts are involved. Therefore, the writ petition is not maintainable and deserves to be dismissed on this count alone.

5. Heard learned counsel for the parties and perused the record.

6. Learned counsel for the respondent No.2 relied on the judgment of the Apex Court in the case of Punjab National Bank & Anr. Vs. M/s. Imperial Gift House & Ors., passed in Civil Appeal No.3563/2009 wherein it is held as under :

By the impugned order, in effect and substance, the High Court has quashed notice issued by the bank under Section 13(2) of the Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [for short, "the Act"]. Upon receipt of notice, respondents filed representation under Section 13(3)(A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the bank. Accordingly, the appeal is allowed, impugned order passed by the High Court is set aside and the writ petition filed before it is dismissed.

7. In the case of ICICI Bank Limited, Corporate Office, Chennai Unit Vs. Lakshminarayanan, the High Court of Judicature at Madras in Writ Appeal No.2245/2002 in Paragraph 16 has held as under :-

16. Similar question relating to maintainable of a 'Writ' under Article 226 of the Constitution of India, was considered by the Supreme Court in 2003 (10) SCC 733 = 2003 (4) CTC 418 (SC) (Federal Bank Ltd. vs. Sagar Thomas). In the said case, the Supreme Court observed that a Writ Petition under Article 226 of the Constitution of India may be maintained against a private body discharging public duty or positive obligation of public nature. Similar argument advanced on behalf of an employee that the Federal Bank performs public duty, in the light of the control of the Reserve Bank of India over the Banking industries, was accepted by the High Court. However, the Supreme Court, on appeal preferred by the Federal Bank Ltd., reversed such finding with the following observation:

"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function."

"27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act , the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Signature Not Verified Act, 1974 etc. or statutes of the like nature which fasten certain duties and Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to." "32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring authority." "33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or a company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor put any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Pesent is a case of disciplinary action being taken against its employee by the appellant Bank. The respondent's service with the Bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed." Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

8. In the case of R.K. Timber and another Vs. ICICI Bank Ltd. and another[2011(4) M.P.L.J. 73 it has been held as under :-

9. For yet another reason, the writ petition preferred by the petitioners cannot be entertained. The petitioner has sought quashment of notice issued under Section 13(2) of the 2002 Act. The Supreme Court in United Bank of India Vs. Satyawati Tondon and others, (2010) 8 SCC 110, has held that where an action is taken under section 13(4) of the 2002 Act, the remedy available to an aggrieved person is to file an appeal under section 17 of the 2002 Act and High Court in exercise of powers under Article 226 of the Constitution should not entertain the writ petition on the ground of availability of alternative remedy.

9. In the case of Phoenix Arc Private Limited Vs. Vishwa Bharati Vidya Mandir & Ors.[(2022) 5 SCC 345] the Apex Court has held as follows :

15. It is required to be noted that it is the case on behalf of the appellant that as such the communication dated 13.08.2015 cannot be said to be a notice under Section 13(4) of the SARFAESI Act at all. According to the appellant, after the notice under Section 13(2) of the SARFAESI Act was issued in the year 2013 and thereafter despite the Letter of Acceptance dated 27.02.2015, no further amount was paid, the appellant called upon the borrowers to make the payment within two weeks failing which a further proceeding under Section 13(4) of the SARFAESI Act was proposed. Thus, according to the appellant, it was a proposed action. Therefore, the writ petitions filed against the proposed action under Section 13(4) of the SARFAESI Act was not maintainable and/or entertainable at all.

16. Assuming that the communication dated 13.08.2015 can be said to be a notice under Section 13(4) of the SARFAESI Act, in that case also, in view of the statutory remedy available under Section 17 of the SARFAESI Act and in view of the law laid down by this Court in the cases referred to hereinabove, the writ petitions against the notice under Section 13(4) of the SARFAESI Act was not required to be entertained by the High Court. Therefore, the High Court has erred in entertaining the writ petitions against the communication dated 13.08.2015 and also passing the ex-parte ad- interim orders directing to maintain the status quo with respect to possession of secured properties on the condition directing the borrowers to pay Rs. 1 crore only (in all Rs.3 crores in view of the subsequent orders passed by the High Court extending the ex- parte ad-interim order dated 26.08.2015) against the total dues of approximate Rs.117 crores. Even the High Court ought to have considered and disposed of the application for vacating the ex-parte ad- interim relief, which was filed in the year 2016 at the earliest considering the fact that a large sum of Rs.117 crores was involved.

10. The Apex Court in the case of Roshina T. Vs. Abdul Azeez K.T.

Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

& Ors. [(2019) 2 SCC 329 has held as under :-

Held :

The appellant and the respondent No. 1 are private individuals and both are claiming their rights of ownership and possession over the flat in question on various factual grounds.

The question as to who is the owner of the flat in question, whether respondent No. 1 was/is in possession of the flat and, if so, from which date, how and in what circumstances, he claimed to be in its possession, whether his possession could be regarded as legal or not qua its real owner etc. were some of the material questions which arose for consideration in the writ petition. These questions of fact and could be answered one way or the other on the basis of evidence adduced by the parties.

T h e High Court unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was the respondent No. 1 (writ petitioner) who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant. While so directing it exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution which was not permissible. The High Court in granting the relief had virtually converted the writ petition into a civil suit and itself to a Civil Court. The filing of the writ petition was wholly misconceived. It deserved dismissal in limine on the ground of availability of alternative remedy of filing a suit by Respondent No.1(writ petitioner) in the civil court.

A regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. The High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. A dispute regarding possession of the flat between the two private individuals could be decided only by the civil court in civil suit or by the criminal court in Section 145 CrPC proceedings but not in the writ petition under Article 226 of the Constitution. The writ petition to claim such relief was not legally permissible. It is not Signature Not Verified Signed by: PREETHA NAIR Signing time: 2/13/2023 7:36:06 PM

intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant.

11. Heard learned counsel for the parties and perused the record.

12. In view of the aforesaid settled legal position, this Court refrains from entertaining this writ petition. However, the petitioner is granted liberty to approach before the appropriate forum in accordance with law, if so advised.

13. With the aforesaid, this writ petition is dismissed as not maintainable. No order as to costs.

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


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Signature Not Verified
Signed by: PREETHA NAIR
Signing time: 2/13/2023
7:36:06 PM