Madhya Pradesh High Court
M/S Maa Traders Through Its Proprietor ... vs The State Of Madhya Pradesh on 5 March, 2024
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 5 th OF MARCH, 2024
WRIT PETITION No. 5281 of 2024
BETWEEN:-
1. M/S MAA TRADERS THROUGH ITS PROPRIETOR
SHRI JAGDISH GAJRA S/O SHRI MANOHARLAL
GAJRA, AGED ABOUT 45 YEARS, OCCUPATION:
BUSINESSMAN R/O PHASE II, BANARSI DAS
BHANOT, WARD NO 54, GORAKHUR DISTRICT
JABALPUR (MADHYA PRADESH)
2. M/S POOJA ENTERPRISES THROUGH ITS
PROPRIETOR SMT. POOJA GAJRA W/O SHRI
JAGDISH GAJRA, AGED ABOUT 40 YEARS,
OCCUPATION: HOUSEWIFE R/O PHASE-II,
BANARSI DAS BHANOT WARD NO.54
GORAKHPUR JABALPUR DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONERS
(BY MS. POOJA GAJRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR JABALPUR DISTRICT JABALPUR
(MADHYA PRADESH)
2. PUNJAB NATIONAL BANK THROUGH ITS CHIEF
MANAGER, CIRCLE SASTRA CENTER CIRCLE
OFFICE JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI S.S. CHAUHAN - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, Hon'ble Shri Justice
Signature Not Verified
Vishal Mishra passed the following:
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 3/15/2024
5:10:47 PM
2
ORDER
The present petition under Article 226 of the Constitution of India has
been filed against issuance of a sale notice dated 30.1.2024 (Annexure P/4)
issued under the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the
SARFAESI Act of 2002').
2. It is the case of the petitioners that they have taken loan from the
respondent no.2 Bank in respect of Flat No.S/10, Phase-II, Atul Vihar
Apartment, Buildup Area 710 Sq., Hanthital, Gorakhpur, Jabalpur. The
petitioner No.1 is the borrower and the petitioner No.2 is the co-borrower of the
loan transaction. There were certain defaults in repaying the loan amount,
therefore, the petitioner's account was declared as NPA on 29.06.2022. A
notice under Section 13(2) and 13(4) of SARFAESI Act, 2002 has been issued
to the petitioners to repay the dues and possession of the secured assets has
been taken on 17.11.2022 and 10.02.2023. The petitioners entered into One
Time Settlement with the respondent No.2/Bank on 08.08.2023 and
accordingly, the petitioners have deposited Rs.4.30 Lakhs in the loan account,
but they failed to deposit the remaining amount i.e. Rs.17.70 Lakhs within time.
Thereafter, the respondent/Bank put the property of the petitioner to auction by
issuance of a sale notice. It is their case that the property is going to be sold at
the reserved price i.e. Rs.19,17,000/- whereas the actual price of the property is
much higher. The actual price of the property is more than Rs.30.00 Lakhs. The
petitioners are still willing to settle the issue, but the respondent/Bank is
proceeding in the matter in hot haste, therefore, the present writ petition has
been filed.
3. A specific question was put to the counsel for the petitioner that as to how
a petition is maintainable in view of the proceedings which have been initiated
under Sections 13(2) & 13(4) of the SARFAESI Act, 2002 in view of the
judgment passed by the Hon'ble Supreme Court in the case of United Bank of
India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110. There is
no answer to the aforesaid by the petitioners' counsel. It is only contended that
the petitioners are still ready to settle the issue with the respondent/Bank.
However, he writ petitions in SARFAESI matters especially when the notice
under Sections 13(2) and 13(4) of the SARFAESI Act, 2002 has been issued is
not to be entertained. The Hon'ble Supreme Court has deprecated such practice
of entertaining writ petition under Article 226 of the Constitution of India and
has held as under:
"43. Unfortunately, the High Court overlooked the settled law that the
High Court will ordinarily not entertain a petition under Article 226
of the Constitution if an effective remedy is available to the aggrieved
person and that this rule applies with greater rigour in matters
involving recovery of taxes, cess, fees, other types of public money and
the dues of banks and other financial institutions. In our view, while
dealing with the petitions involving challenge to the action taken for
recovery of the public dues, etc. the High Court must keep in mind that
the legislations enacted by Parliament and State Legislatures for
recovery of such dues are a code unto themselves inasmuch as they
not only contain comprehensive procedure for recovery of the dues
but also envisage constitution of quasi-judicial bodies for redressal of
the grievance of any aggrieved person. Therefore, in all such cases,
the High Court must insist that before availing remedy under Article
226 of the Constitution, a person must exhaust the remedies available
under the relevant statute.
55. It is a matter of serious concern that despite repeated
pronouncement of this Court, the High Courts continue to ignore the
availability of statutory remedies under the DRT Act and SARFAESI
Act and exercise jurisdiction under Article 226 for passing orders
which have serious adverse impact on the right of banks and other
financial institutions to recover their dues. We hope and trust that in
future the High Courts will exercise their discretion in such matters
with greater caution, care and circumspection."
4. Recently the Hon'ble Supreme Court in the case of ICICI Bank Ltd. and
others Vs. Umakanta Mohapatra reported in (2019) 13 SCC 497 has again by
referring to the case of Satyawati Tandon (supra) has strongly deprecated the
practice of entertaining the writ petition under Article 226 of the Constitution of
India and has held as under :-
"1. Delay condoned. Leave granted.
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 non-performing 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 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. Under these circumstances, since the proceedings under Sections 13(2)
and 13(4) of the SARFAESI Act, 2002 have already been initiated, no
interference can be made in a petition under Article 226 of the Constitution of
India. The remedy of the petitioners lies elsewhere.
6. The writ petition sans merit and is accordingly dismissed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
sj
