Madhya Pradesh High Court
Ku. Vandana Soni vs The State Of Madhya Pradesh on 15 May, 2023
Author: Sushrut Arvind Dharmadhikari
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 15 th OF MAY, 2023
WRIT PETITION No. 11243 of 2023
BETWEEN:-
KU. VANDANA SONI D/O SHRI PRAKASH CHANDRA
SONI OCCUPATION: HOUSE WORK 73 GURUNANAK
COLONY, INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI ANAND KUAMR NALWAYA, LEARNED COUNSEL FOR THE
PETITIONER )
AND
1. THE STATE OF MADHYA PRADESH COLLECTOR
COLLECTOR OFFICE, MOTI TABELA, INDORE
(MADHYA PRADESH)
2. EXECUTIVE MAGISTRATE / TEHSILDAR TEHSIL
RAU AREA, COLLECTOR OFFICE, MOTI TABELA,
INDORE (MADHYA PRADESH)
3. BHUPENDRA S/O SHIVNARAYAN SONI 210-A,
SUDAMA NAGAR, INDORE (MADHYA PRADESH)
4. SMT. VIDHIYA W/O BHUPENDRA SONI
OCCUPATION: HOUSE WIFE 210-A, SUDAMA
NAGAR, INDORE (MADHYA PRADESH)
5. PRAKASH CHANDRA S/O SHRI BHAWAR LAL
OCCUPATION: BUSINESS 73- GURUNANAK
COLONY, INDORE (MADHYA PRADESH)
6. IDFC FIRST BANK LIMITED THROUGH ITS
MANAGER 111 FIRST FLOOR, TULSI TOWER,
SOUTH TUKOGANJ, STREET NO. 1, GEETA
BHAWAN, INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/16/2023
5:55:39 PM
2
.....RESPONDENTS
( SHRI TARUN KUSHWAH , LEARNED PANEL LAWYER FOR THE
RESPONDENTS/STATE)
This petition coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard on the question of admission and interim relief.
In this petition, under Article 226 of the Constitution of India, the
petitioner has assailed the order dated 01.05.2023(Annexure P-3) whereby the
respondent no.2 issued the said letter in compliance of the order passed in Case
No. 0495/121/2022-23 dated 24.04.2023 for handing over the possession of
mortgaged property to the respondent no.6.
2. Being aggrieved, the petitioner has filed the present writ petition
seeking for the following reliefs:
"This Hon'ble Court may kindly be graciously pleased to
issue a Writ of Mandamus/Certiorari, Writ, Order, Direction to the
respondents:
A. To issue the writ Certiorari/Mandamus to quash/stay the
impugned notice dated 01.02.2023 passed by the respondents no.2
Executive Magistrate/Tehsildar Rau(Annexure P/3).
B. Also Quashed the order dated 24.04.2023 case no.
0459/b-121/2022-23.
C. Also directed to the respondents no.6 bank to recover the
mortgage loan from the other property of respondents no.3 and 4.
D. Any other relief/reliefs this Hon'ble Court as deems fit and
proper in the facts and circumstances of the case may also kindly
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be passed."
3. The brief facts of the case as per the petition are that petitioner is the
daughter of respondent no.5 and her father in the year 1983 purchased HNO
73, Gurunank Colony, Indore (hereinafter referred as disputed property). The
respondent no. 5 without bringing to the knowledge of petitioner sold the
property to respondents Bhupendra and his wife Smt. Vidhya in the year 2021,
when it came to the knowledge of petitioner, she filed Civil Suit No. 3220/2021
for cancellation of sale deed, permanent injunction and for partition. During
pendency of the suit, respondents no.3 and 4 had taken mortgage loan on the
said property from IDFC First Bank. When this fact came to the knowledge of
petitioner, she impleaded the bank as defendant and moved an application for
stay of the proceedings which is pending till date. Thereafter, in due course the
Tehsildar, Tehsil Rau issued letter dated 02.0.2023 for taking physical
possession of the property in dispute where the petitioner is currently residing.
Therefore, the petitioner invoked the jurisdiction of this Court.
4. Learned counsel for the petitioner submits that the property in dispute
is an ancestral property of the petitioner and she is the co-sharer of the said
property and without her knowledge , the petitioner's father sold the said
property to respondent no.4 and 5 vide registered sale deed, because of which
the petitioner has filed civil suit in which an application for stay is pending.
5. Heard learned counsel for the petitioner and perused the record.
6. As per the record, i.e. Annexure P-4 objection given by the petitioner
in case no. 495/B-121/2022-23 to the District Magistrate in which she has
categorically stated that the disputed property was purchased by her father in
the year 1983 and was further sold by her father to the respondent no. 4 and 5 .
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Therefore, from perusal of the record, it does not appear that the disputed
property is the ancestral property of the petitioner thereby she cannot be
considered as co-sharer of the property.
7. As stated above, the civil suit is already pending before the trial Court
in which an application under Order 39 Rule 1 and 2 CPC is also pending.
8. 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 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 them
High Court for reasons already noticed in Dw arikesh Sugar
Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd.
[Dwarikesh Sugar Industries Ltd. v. Prem Heavy
EngineeringWorks(P)Ltd.,(1997)6SCC450], observing: (SCC p.
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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.T h e writ petition, in this case, being n o t maintainable,
obviously, all orders passed must perish, including the impugned
order, which is set aside.
5. The appeals are allowed in the aforesaid terms. Pending
applications, if any shall stand disposed of.(Emphasis supplied)
9. Apart from this, the Apex Court in the case of Kalabharti
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
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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 Orissav.M a d a n Gopal
Rungta,AIR1952SC 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. , AIR1966SC1441;and
PremierAutomobiles Ltd.v . Kamlakar Shantaram Wadke
& Ors., AIR 1975 SC 2238).
1 0 . 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 non compliance 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 of an offer by the
borrower.
11. 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
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the law."
12. In the light of the aforesaid pronouncements of the Apex Court, this
Court is not inclined to entertain the writ petition and relegates the petitioner to
avail the alternative remedy available under the law.
13. Accordingly, the same is hereby dismissed. No order as to cost
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
V. JUDGE V. JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/16/2023
5:55:39 PM
