Harish Tolani vs Collector
2023 Latest Caselaw 8102 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                  BEFORE
                           HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                                                     &
                                     HON'BLE SHRI JUSTICE ANIL VERMA
                                               ON THE 22 nd OF MAY, 2023
                                            WRIT PETITION No. 11965 of 2023

                          BETWEEN:-
                          HARISH TOLANI S/O SHRI MOOLCHAND TOLANI, AGED
                          60 YEARS, OCCUPATION: BUSINESS R/O 48 VINAY
                          NAGAR INDORE (MADHYA PRADESH)

                                                                                     .....PETITIONER
                          (SHRI VIJAY KUMAR ASSUDANI, LEARNED COUNSEL FOR THE
                          PETITIONER )

                          AND
                          1.    COLLECTOR INDORE, DISTT. INDORE (MADHYA
                                PRADESH)

                          2.    UPPER TEHSILDAR JUNI INDORE, DISTT. INDORE
                                (MADHYA PRADESH)

                          3.    SANJAY DWIVEDI S/O LATE SHRI SHESHMANI
                                D WIVED I UG-20, CHETAK CENTER, 13-14, RNT
                                MARG, INDORE (MADHYA PRADESH)

                          4.    BANK OF INDIA THROUGH CHIEF MANAGER
                                SARM BRANCH, MUMBAI FORT MUMBAI
                                (MAHARASHTRA)

                                                                                  .....RESPONDENTS
                          (SHRI P.V. BHAGWAT, LEARNED GOVT. ADVOCATE FOR THE
                          RESPONDENTS NO.1 & 2)

                                This petition coming on for admission this day, JUSTICE SUSHRUT
                          ARVIND DHARMADHIKARI passed the following:
                                                           ORDER

Heard on I.A. No. 3478/2023, an application for urgent hearing during Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/24/2023 1:20:09 PM

summer vacation.

On due consideration, the same is allowed and closed. Also heard on the question of admission and interim relief. This writ petition under Article 226 of the Constitution of India has been filed against the order dated 03.05.2023 passed by the respondent no.2, which was affixed on petitioner's property on 18.05.2023.

2. Brief facts of the case are that petitioner is in possession of the property admeasuring 1035 sq. ft situated at 171 (Old No.81 ) Devi Ahilya Marg, Indore(referred to as 'property in question' hereinafter) which he had purchased vide registered sale deed dated 13.11.1995. Respondent no.3 has

friendly relations with the petitioner and therefore on his request, petitioner went to sign as a witness on the sale deed before the Sub-Registrar of the Properties and Assurances which the respondent no.3 was going to purchase. Thereafter, on query raised by the Income Tax Department in August, 2018, the petitioner came to know that respondent no.3 has fraudulently got the property in question in his name vide three sale deeds dated 08.08.2013 for which no consideration was paid to him. However, amount of consideration of Rs. 3.64 Crores was mentioned in the sale deeds. Petitioner immediately filed a suit for declaration and permanent injunction to declare the alleged sale deeds null and void. To the utter surprise of petitioner, the respondent no.1 has mortgaged the property in question with the bank in which notice u/S 14 of SARFAESI Act has been affixed on the property in question mentioning that the physical possession of the property in question would be taken for the purposes of ongoing proceedings under the SARFAESI Act.

3. Learned counsel for the petitioner submits that against the impugned order, he has an alternative remedy of application u/S 17 of the SARFAESI Act Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/24/2023 1:20:09 PM

to be filed before the DRT. However, the petitioner neither falls under the category of a borrower nor a guarantor. Therefore, the said remedy cannot be availed. Moreso, the DRT is not functional due to vacation period.

4. In support of his submissions, learned counsel for the petitioner 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. He further relied upon the judgment passed by the Apex Court in the case of M/S Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority and Others reported in 2023 Live Law SC 70 to contend that purely legal question is involved and it does not involve disputed questions of fact, then the Apex Court has held that the High Courts should not dismiss the writ petition on the ground of an alternative remedy.

5. Learned counsel for the respondent/State opposes the prayer made by learned counsel for the petitioner.

6. Heard, learned counsel for the parties and perused the record.

7. We are told that DRT is not functional in Madhya Pradesh. The litigant cannot be left remedy-less. We hence deem it proper to dispose of this Writ

Signature Not Verified Signed by: SEHAR HASEEN Signing time: 5/24/2023 1:20:09 PM

Petition by directing the petitioner to file an appropriate application along with a prayer for interim relief before the Debt Recovery Tribunal in respect of the action initiated by respondent No.2 which is the subject matter of this petition within an period of 30 days from today. In case such application(s) is filed by the petitioners praying for interim relief, the DRT shall take up the said applications including the prayer for interim relief soon it becomes functional and take a decision on the prayer for interim relief in accordance with law expeditiously. It shall be the duty of the petitioners to communicate this order to the respondents and to the Registry of DRT within seven working days from today, failing which interim protection shall cease to operate automatically.

8. In the meanwhile, the respondents are restrained from taking any coercive action against the petitioner for a period of 30 days from today.

9. The interim protection granted today shall stand vacated automatically after expiry of 30 days.

10. With the aforesaid liberty, the petition is disposed of. C.c. as per rules.

                               (S. A. DHARMADHIKARI)                                        (ANIL VERMA)
                                        V. JUDGE                                             V. JUDGE
                          sh




Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/24/2023
1:20:09 PM