Pradeep Jaiswal vs Punjab National Bank
2023 Latest Caselaw 7381 MP

                                                       1
                                                                     W.P. No. 2787 of 2022

                          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 8th OF MAY, 2023


                                        WRIT PETITION No. 2787 of 2022

                          BETWEEN:-
                             PRADEEP JAISWAL S/O SHRI RAMLAL JAISWAL, AGED 55 YEARS,
                          1. HOUSE AT PLOT NO. 1623 SUDAMA NAGAR D SECTOR (MADHYA
                             PRADESH)
                             SMT. NIRMALA JAISWAL W/O PRADEEP JAISWAL, AGED 53 YEARS,
                          2. HOUSE AT PLOT NO. 1623 SUDAMA NAGAR D SECTOR (MADHYA
                             PRADESH)
                                                                       .....PETITIONERS
                          (SHRI R S CHHABRA SENIOR ADVOCATE WITH SHRI ABHISHEK
                          MALVIYA, LEARNED COUNSEL FOR THE PETITIONERS )
                          AND
                              AUTHORISED OFFICER PUNJAB NATIONAL BANK BRANCH M.P.H.B.
                          1.
                             FADNIS COLONY A.B. ROAD INDORE (MADHYA PRADESH)
                             CHIEF MANAGER. PUNJAB NATIONAL BANK, CIRCLE SASTRA
                          2. CENTRE, SECOND FLOOR 20, SNEH NAGAR. SAPNA SANGEETA
                             ROAD. INDORE (MADHYA PRADESH)
                             THE STATE OF M.P. THR. DIST. MAGISTRATE INDORE
                          3.
                             COLLECTORATE, INDORE (MADHYA PRADESH)
                          4. STATE OF M.P. THR. TEHSILDAR INDORE (MADHYA PRADESH)
                             THE STATE OF M.P. THR. SUPERINTENDENT OF POLICE INDORE
                          5.
                             (MADHYA PRADESH)
                             THE STATE OF M.P. THR. TOWN INSPECTOR POLICE STATION
                          6.
                             SUDAMA NAGAR. (MADHYA PRADESH)
                                                                      .....RESPONDENTS
                          (SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE RESPONDENT
                          [INT].
                          SHRI SHREY RAJ SAXENA, LEARNED COUNSEL FOR THE RESPONDENT


Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/8/2023
6:37:36 PM
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                                                                                                      W.P. No. 2787 of 2022

                          [R-1].
                          ----------------------------------------------------------------------------------------------------------
                                   Reserved on                :           24.01.2023
                                   Pronounced on              :           08.05.2023
                          -----------------------------------------------------------------------------------------
                                   This petition having been heard and reserved for orders coming
                          on        for pronouncement this day,                         Hon'ble Shri Justice S.A.
                          DHARMADHIKARI pronounced the following
                                                                        ORDER

Heard finally with the consent of both the parties. In this petition, under Article 226/227 of the Constitution of India, the petitioner has assailed the order dated 29.09.2021 passed in S.A. No. 279/2021 by the Debt Recovery Tribunal, Jabalpur which was disposed of as rendered infructuous vide order dated 29.09.2021 as the petitioner and respondent no.2 have entered into amicable settlement.

2. Being aggrieved, the petitioner has filed the present writ petition seeking for the following reliefs:

"It is therefore, prayed that this Hon'ble Court may: A. Direct the respondent Bank to hand over the title deeds of the mortgaged property situated at Plot No. 1623, Sector - D, Sudama Nagar, Indore.

B. Direct the respondent Bank to comply with the clear instructions and directions issued by the Ld. DRT, Jabalpur vide its order, dated 29.09.2021 passed in S.A. No. 279/2021.

C. Direct the Respondent Bank to withdraw all the recovery proceedings pertaining to the notice, dated 31.07.2019 issued under Section 13(2) of the SARFAESI

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/8/2023 6:37:36 PM

W.P. No. 2787 of 2022

Act and also direct the respondent Bank to foreclose the loan account of the petitioners herein.

D. Any other relief, which this Hon'ble Court may deem fit."

3. Also heard on I.A. No. 1957/2022, an application for intervention filed by the auction purchaser who has been declared as successful bidder in the auction conducted by the bank and has even deposited the entire amount of auction of Rs. 65,50,000/- and thereafter, the bank has issued sale certificate.

4. In view of the aforesaid, I.A. No. 1957/2022 is allowed.

5. The brief facts of the case are that the petitioners availed an overdraft credit facility in the year 2016 for a sum of Rs. 84,00,000/- on a collateral security of the house situated at Plot No. 1623, Sector - D Sudama Nagar, Indore (hereinafter referred as disputed house) from the respondent no.1. The petitioners failed to pay the required amount of money for the said overdraft facility due to which the respondent no.1 declared the petitioners' account as NPA and took the physical possession of the disputed house and conducted an auction for selling the disputed house. The auction purchaser/intervener in the said auction was declared as successful bidder and the sale certificate was issued to him as he had successfully deposited the auction amount of Rs. 65,50,000/-.

6. Learned counsel for the petitioners submitted that respondent no.1 has illegally taken physical possession of the disputed house and the letter dated 23.03.2021 of Tehsildar is bad in the eyes of law. The petitioners have a constitutional right of right to property and they cannot be deprived from such right. Under such circumstances, the

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/8/2023 6:37:36 PM

W.P. No. 2787 of 2022

respondent bank be directed to handover the title deed of the mortgaged property situated at Plot No.1623 Sector - B Sudama Nagar, Indore.

7. On the other hand, learned counsel for the respondent no.1 and 2 submitted that the present writ petition is not maintainable and that the bank has already filed Miscell. Application No. 51/2021 before the Debt Recovery Tribunal, Jabalpur seeking modification of the order dated 29.09.2021 and the matter is sub-judiced, therefore, the petitioners are not entitled for any of the reliefs and accordingly, the petition deserves to be dismissed.

8. We have heard learned counsel for both the parties and perused the record.

9. From the pleadings as well as the arguments , it appears that the said petition has been filed only with the purpose to get the order passed by the DRT implemented/executed. Hence, we find no reason to entertain this petition when the petitioners have a efficacious statutory alternative remedy to approach the Debts Recovery Tribunal and other appropriate forums.

10. 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

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W.P. No. 2787 of 2022

interim orders in favour of persons who are nonperforming 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 impunged order, which is set aside. 5. The appeals are allowed in the aforesaid terms. Pneding applications, if any shall stand disposed of."

(Emphasis supplied)

11. Apart from this, the Apex Court in the case of Kalabharti

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W.P. No. 2787 of 2022

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).

12. Recently, the Apex Court in the case of M/S South Indian Bank 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act hereinafter) 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

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W.P. No. 2787 of 2022

of an offer by the borrower.

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."

13. In the light of the aforesaid pronouncements of the Apex Court, this Court is not inclined to entertain the writ petition.

14. Accordingly, the same is hereby dismissed. No order as to cost.

                              (S. A. DHARMADHIKARI)                    (PRAKASH CHANDRA GUPTA)
                                       JUDGE                                    JUDGE
                                      08.05.2023                                 08.05.2023


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Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/8/2023
6:37:36 PM