Madhya Pradesh High Court
M/S Arora Traders Through Its ... vs The State Of Madhya Pradesh on 7 November, 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 7 th OF NOVEMBER, 2023
WRIT PETITION No. 28411 of 2023
BETWEEN:-
1. M/S ARORA TRADERS THROUGH ITS
PROPRIETOR SHRI UDAY ARORA REGD. OFFICE
PLOT 185 MALWA MILL ANAJ MANDI SCHEME
NO. 91 INDORE (MADHYA PRADESH)
2. SHRI UDAY ARORA S/O MUNSHI RAM ARORA
OCCUPATION: BUSINESSMAN 57, SANJAY NAGAR
BEHIND ANOOP TALIKES INDORE (MADHYA
PRADESH)
3. SMT. SHARDA ARORA W/O SHRI UDAY ARORA
OCCUPATION: BUSINESS 57, SANJAY NAGAR
BEHIND ANOOP TALIKES INDORE (MADHYA
PRADESH)
.....PETITIONERS
(MS YASHI MAHESHWARI, LEARNED COUNSEL FOR THE PETITIONERS)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
ADDITIONAL DISTRICT MAGISTRATE DISTT.
INDORE (MADHYA PRADESH)
2. THE AUTHORIZED OFFICER CUM CHIEF
MANAGER CANARA BANK, ERSTWHILE
SYNDICATE BANK CANARA BANK, NANDA
NAGAR INDORE MADHYA PRADESH, REGIONAL
OFFICE OMEGA TOWER, 4TH FLOOR, 32
MECHANIC NAGAR BHAMORI, INDORE
(MADHYA PRADESH)
3. NAYAB TEHSILDAR TEHSIL JUNI INDORE
(MADHYA PRADESH)
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Signed by: SEHAR HASEEN
Signing time: 11/9/2023
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2
4. M/S ARYA TRADING COMPANY A
PROPRIETORSHIP FIRM THROUGH ITS
PROPRIETOR SHRI RAHUL JAIN 103 SWAMI
COMPLEX BEHIND RAJ PLAZA CHHAWANI
INDORE (MADHYA PRADESH)
5. S HR I VISHAL YADAV S/O SHRI RAM PRAKASH
YADAV 43, NETARAM KA BAGICHA MUSAKHEDI
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(NONE PRESENT FOR THE RESPONDENTS)
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
petitioners have assailed the order dated 12.01.2022(Annexure P-1) passed by
respondent no.1 in Case No. 057/C-121/2020-21 as well as the order dated
02.08.2023 (Annexure P2) passed by respondent no.3.
2. Being aggrieved, the petitioner has filed the present writ petition
seeking for the following reliefs:
"In the aforesaid facts and circumstances, the petitioners most
respectfully pray that this Hon'ble Court be pleased to:
A. Direct & refrain the respondents from taking any coercive
action against the property of the petitioner and the respondents
may kindly be directed to maintain status-quo till the pendency of
the present writ petition.
B. This Hon'ble Court may kindly be pleased to relegated the
matter to the civil Court for disposal and resolution of the subject
property between the three claimants in the subject matter.
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C. Any other relief(s), which this Hon'ble Court may deem fit
to be granted to the petitioners under the facts and circumstances
of the present case."
3. T he brief facts of the case as per the petition are that petitioner
no.1/firm is the guarantor and petitioner no.2 is proprietor of the borrower firm
of the respondent no.2/Bank. Petitioner no.2 & 3 approached the respondent
no.2/bank for availing credit facilities to the tune of Rs. 1,00,00,000/- with
requisite documents. Respondent no.2/Bank advanced credit facilities to the
petitioners after acquiring the value report and legal scrutiny report after
exhibiting legal possession of the property situated at Plot No. 20 Shiv Mangal
Bhagat Colony, Village Pipliyahna Teh & Distt Indore(referred to as "property
in question" hereinafter). After the petitioners account having been categorized
as "NPA", the respondent bank initiated recovery proceedings against the
petitioner and filed an application before the Addnl District Magistrate u/S 14 of
the Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act(referred to as "SARFAESI Act" hereinafter) . The
respondent no.1 passed an order dated 12.01.2022 directing the petitioners to
hand over the vacant possession of the property in question to the concerned
Sub Divisional Officer, Indore and in case of auction, the petitioner/firm has to
inform the Sub Divisional Officer so that outstanding property tax etc will be
deposited. In compliance of the order passed by the respondent no.1, the
Tehsildar, Juni Indore has given a notice to the petitioners to hand over the
vacant possession of the property in question. The respondent no.4 and 5 have
allegedly claimed the ownership of the property. Three parties are claiming the
ownership of the same subject property out of which respondent no.5 has
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already obtained status-quo from this Court in W.P. No. 20600/2023.
Therefore, the petitioners invoked the jurisdiction of this Court.
4. Learned counsel for the petitioners submits the order passed by
respondent no.1 is wholly illegal and is arbitrary and is passed on the basis of
fraudulent documents. The petitioner has been in possession of the property by
way of registered deed despite of that respondent no.4 and 5 are claiming
ownership over the property in question. Hence, the present petition may be
allowed and the orders passed by the respondent no.1 and respondent no.2 be
quashed.
5. Heard learned counsel for the petitioners and perused the record.
6. The claim of the petitioners as regards the ownership of the property
in question is concerned, the same cannot be adjudicated by this Court under
Article 226 of the Constitution of India and the remedy lies before the Civil
Court.
7. So far as the challenge to the order passed by the respondent no.1 is
concerned, it is well within the provisions of Section 14 of the SARFAESI Act
whereby after adhering to all the pre-conditions , respondent no.1 has passed
the order directing the sub-ordinate authority to hand over the vacant
possession of the property in question to the respondent no.2/Bank. Despite
availability of efficacious alternative remedy of filing an application before the
DRT, Jabalpur u/S 17 of the SARFAESI Act, petitioners have chosen to
approach this Court under Article 226 of the Constitution of India for
ventilation of their grievance. In catena of judgments, the Apex Court has held
that High Courts ought not to have exercise power under Article 226 of the
Constitution of India, rather relegate the litigants to exhaust the alternative
remedy available under the law first.
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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.
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
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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
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
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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
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 petitioners to
avail the alternative remedy available under the law by approaching the DRT,
Jabalpur u/S 17 of the SARFAESI Act and thereafter DRAT, Allahabad u/S
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18 of the SARFAESI Act.
13. Accordingly, the same is hereby dismissed. No order as to cost.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
sh
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