Madhya Pradesh High Court
District Trade And Industry Centre ... vs The State Of Madhya Pradesh on 26 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 26 th OF FEBRUARY, 2024
WRIT PETITION No. 589 of 2024
BETWEEN:-
DISTRICT TRADE AND INDUSTRY CENTRE INDORE
THROUGH JOINT DIRECTOR DIC, POLO GROUND,
INDORE AND ALSO AT GENERAL MANAGER DIC
JHABUA (MADHYA PRADESH)
.....PETITIONER
(SHRI ABHISHEK MALVIYA, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH DISTRICT
MAGISTRATE DISTRICT JHABUA (MADHYA
PRADESH)
2. AUTHORISED OFFICER CUM CHIEF MANAGER
PUNJAB NATIONAL BANK 2ND FLOOR SNEH
NAGAR SAPNA SANGEETA MAIN ROAD INDORE
(MADHYA PRADESH)
3. M/S SHREE UTTAM FOOD PRODUCTS INDIA PVT.
LTD. THROUGH ITS DIRECTOR NILESH
UPADHYAY FLAT NO 1 BANSI PLAZA 581 MG
ROAD INDORE (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT)
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.
This petition under Article 226/227 of the Constitution of India has been
filed against the order dated 22.09.2023 passed by the respondent no.1/District
Magistrate, Jhabua.
3. T h e brief facts of the case are that respondent no.3 was the
borrower and has availed loan facility from the respondent no.2/bank to the
tune of Rs. 22,13,00,000/- by way of mortgage of Plot No. 1 to 4 & 6 to 44 &
Part of 45 at Survey No. 242, Notified Industrial Area at Village Bamniya Teh.
Patlawd Distt. Jhabua (referred to as "property in question"hereinafter)which
was leased out to respondent no. 3 by the petitioner by executing registered
lease deed for a period of 30 years. Respondent no.2/bank without taking any
consent for the equitable mortgage and without serving any advance notice of
90 days before undertaking action for recovery issued notice u/S 13(2) and
13(4) Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short SARFAESI Act hereinafter) and thereafter
has approached the respondent no.1 by filing application u/S 14 of the
SARFAESI. Respondent no.1 has allowed the application and directed the
Sub-Divisional Officer to handover the possession of the property in question
to the respondent no.2/bank with further direction to the respondent no.2/bank
to take consent/no objection from the Petitioner as the property in question is a
leased property and the petitioner is a lessor. Therefore, the petitioner has
invoked the writ jurisdiction of this Court.
4. Learned counsel for the petitioner submitted that mortgage was created
without any prior sanction or approval of the petitioner who is the owner of the
said plot. Hence the same is illegal and void and the bank has no right, title or
interest in the said plot. Respondent no.3 has filed an application u/S 17 of the
SARFAESI Act before the DRT, Jabalpur which was registered Diary No.
1184/2023 and the petitioner has received copy of paper book. Respondent
no.2/bank has not only committed non-compliance of the mandate stipulated by
the Apex Court in the case of State of U.P. Vs. United Bank of India &
Ors. reported in (2016) 2 SCC 757. Even otherwise, learned District
Magistrate Distt. Jhabua has also acted without jurisdiction confiding on the
false submission of the respondent no.2/bank. Hence, the present petition may
be allowed and the order passed by respondent no.1 be quashed.
5. Heard, learned counsel for the petitioner and perused the record.
6. Petitioner who is before this Court is the lessor who can also avail the
efficacious statutory alternative remedy to approach the Debts Recovery
Tribunal, Jabalpur by filing application u/S 17 of the SARFAESI Act. The
Ap ex Court in catena of judgments has disapproved the practice of High
Courts in entertaining such kind of petitions where litigants instead of availing
the alternative remedies directly approach this Court, 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) (HIRDESH)
JUDGE JUDGE
sh
