Madhya Pradesh High Court
Vijay Kumar Makwana vs District Magistrate on 21 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: 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 DEVNARAYAN MISHRA
ON THE 21 st OF FEBRUARY, 2024
WRIT PETITION No. 4438 of 2024
BETWEEN:-
VIJAY KUMAR MAKWANA S/O RAJENDRA MAKWANA,
AGED ABOUT 37 YEARS, OCCUPATION: BUSINESS R/O
H.NO. 96 RANIBAGH UJJAIN ROAD DEWAS (MADHYA
PRADESH)
.....PETITIONER
(SHRI RISHI SHRIVASTAVA-ADVOCATE FOR THE PETITIONER)
AND
1. DISTRICT MAGISTRATE DIST. DEWAS (MADHYA
PRADESH)
2. TEHSILDAR TEHSIL AND DIST DEWAS (MADHYA
PRADESH)
3. MANAGER SBFC FINANCE LIMITED 124 SHAGUN
TOWER ABOVE APNA SWEETS VIJAY NAGAR
INDORE (MADHYA PRADESH)
4. M A N A G E R ICICI BANK DEWAS (MADHYA
PRADESH)
5. BANKING OMBUDSMAN OFFICE OF RBI
OMBUDSMAN HOSHANGABAD ROAD POST BOX
NO. 32 BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
Signature Not Verified
ORDER
Signed by: SEHAR HASEEN
Signing time: 23-02-2024
17:00:44
Heard on the question of admission and interim relief.
This petition under Article 226 of the Constitution of India has been filed
against the order dated 05.02.2024 passed by the respondent no.1/District
Magistrate, Dewas.
3. The brief facts of the case are that petitioner is a borrower and has
availed loan facility from the respondent no.3 to the tune of Rs. 15,00,000/- on
31.05.2022. Petitioner submitted that though loan was sanctioned but he was
not provided with the kit of the said loan. Petitioner has been paying monthly
installments on regular basis . However, he has received a message from
respondent no.4 for repayment of loan. Petitioner inquired about the same and
requested that respondent no.4 not to recover the loan from petitioner since
there is no over due. When petitioner visited respondent no.4 for clarification,
wherein he was informed that respondent no.3 has got the loan sanctioned from
respondent no.4 without the knowledge of petitioner by misusing his
documents. out of the total amount of loan, Rs. 3,00,000/- was sanctioned by
respondent no.3 and Rs. 12,00,000/- was sanctioned by the respondent no.4
and none of the amount paid towards installment by the petitioner has been
adjusted towards the loan account and, therefore, total liability of petitioner was
more than the amount of loan itself even after making regular payment of 16
installments amounting to more than Rs. 3,00,000/-. Petitioner has written to the
respondent no.3 for foreclosing the loan account. However, he was told that he
can only foreclose the loan account after expiry of one year. Faced with the
situation, petitioner has stopped making payment of installment and thereafter
respondent no.3 issued notice u/S 13(2) of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (for short SARFAESI Act hereinafter) to which petitioner has filed his
objection. Despite that, respondent no.3 further filed an application u/S 14 of
SARFAESI Act b efo re the District Magistrate/respondent no.1 seeking
assistance for taking physical possession of the mortgaged property from the
petitioner. Respondent no. 1 took cognizance upon the application and has
passed order dated 05.02.2024 in favour of the respondent no.3. In compliance
of the order passed by the District Magistrate/respondent no.1, the respondent
no.2/Tehsildar, Distt. Dewas issued letter dated 09.02.2024 for giving physical
possession of the mortgaged property to the Authorized Officer of respondent
no.3/bank. Therefore, the petitioner has invoked the writ jurisdiction of this
Court.
4. Learned counsel for the petitioner submitted that learned District
Magistrate Distt. Dewas has passed order dated 05.02.2024 without giving
opportunity of hearing to the petitioner and by violating the principles of natural
justice, the said order was passed. He further submitted that he has approached
the Debt Recovery tribunal by filing securitization application on 19.02.2024,
which was registered as S.A. No. 403/2024. Hence, some breathing time may
be given till his application for interim relief is heard by the Tribunal.
5. Heard, learned counsel for the petitioner and perused the record.
6. From perusal of the the pleadings, it came to light that petitioner has
filed SARFAESI application i.e. S.A. No. 403/2024 before the DRT, Jabalpur
on 19.02.2024 and thereafter he has rushed to this Court by filing the instant
petition on 20.02.2024 without waiting for the outcome of SARFAESI
application, so filed before the DRT, Jabalpur. The action of the petitioner
clearly reveals that instant petition has only been filed in the eleventh hour to
get interim protection against dispossession from the property in question.
Hence, we find no reason to entertain this petition, especially when the petitioner
has already availed efficacious statutory alternative remedy to approach the
Debts Recovery Tribunal, Jabalpur by filing application u/S 17 of the
SARFAESI Act which is pending adjudication . The Apex Court in catena of
judgments has disapproved the practice of High Courts in entertaining such
kind of petitions which are as follows:
7. 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)
1 7 . 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 impugned order,
which is set aside. 5. The appeals are allowed in the aforesaid terms.
P e n d i n g applications, if any shall stand disposed
of."
(Emphasis supplied)
8. 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 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).
9. 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 SARFAESI Act 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 of
an offer by the borrower.
1 0 . 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."
11. In the light of the aforesaid pronouncements of the Apex Court, this
Court is not inclined to entertain the writ petition.
12. Accordingly, the writ petition bereft of merit hereby dismissed. No
order as to cost.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
sh
