Madhya Pradesh High Court
M/S Sita Shree Food Product Limited vs The State Of Madhya Pradesh on 16 May, 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 GAJENDRA SINGH
ON THE 16 th OF MAY, 2024
WRIT PETITION No. 8031 of 2022
BETWEEN:-
1. M/S SITA SHREE FOOD PRODUCT LIMITED
THROUGH ITS MANAGING DIRECTOR SHRI
DINESH AGRAWAL S/O LATE SHRI JAGDISH
CHANDRA AGARAWAL NOW AT 85, JANAKI
NAGAR MAIN, INDORE (MADHYA PRADESH)
2. SHRI DINESH AGRAWAL S/O LATE SHRI JAGDISH
CHANDRA, AGED ABOUT 68 YEARS, 85, JANKI
NAGAR. MAIN INDORE. (MADHYA PRADESH)
3. ANOOP GOYAL S/O SHRI DINESH AGRAWAL,
AGED ABOUT 33 YEARS, 85, JANKI NAGAR. MAIN
INDORE. (MADHYA PRADESH)
4. ASHISH GOYAL S/O SHRI DINESH AGRAWAL,
AGED ABOUT 38 YEARS, 85, JANKI NAGAR. MAIN
INDORE. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHUTOSH NIMGAONKAR, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. STATE BANK OF INDIA, A BODY CORPORATE
CONSTITUTED UNDER THE STATE BANK OF
INDIA. ACT, 1953 (23 OF 1995) THR. AUTHORISED
OFFICER CUM ASSISTANT GENERAL MANAGER
HAVING CENTRAL OFFICE AT STATE BANK
BHAWAN, MADAME CAMA ROAD, BACK BAY
RECLAMATION, NARIMAN POINT, MUMBAI AND
ITS STRESSED ASSETS MANAGEMENT BRANCH
AT, 1, AREA HILLS, BHOPAL (MADHYA PRADESH)
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 18-05-2024
11:24:09
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3. THE UNION BANK OF INDIA, A BODY CORPORATE
CONSTITUTED BY AND UNDER THE BANK
COMPANIES (ACQUISITION AND TRANSFER OF
UNDERTAKING) ACT, 1969 THR. ITS CHIEF
MANAGER HAVING ITS HEAD OFFICE AT UNION
BANK BHAJWAN, 239, VIDHAN BHAJWAN MARG,
NARIMAN POINT, MUMBAI 400021 AND A
BRANCH AMONGST OTHER PLACE AT MID
CORPORATE, BRANCH SATGURU PARINAYA, PU-
3, PLOT NO. 5 NEAR PALIKA PLAZA, SHEME 54,
A.B. ROAD. INDORE (MADHYA PRADESH)
4. CANARA BANK, A BANKING COMPANY
CONSTITUTED UNDER THE BANKING
COMPANIES (ACQUISITION AND TRANSFER OF
UNDERTAKINGS) ACT, 1969, THR. ITS CHIEF
MANAGER HAVING ITS HEAD OFFICE AT 112, J.C.
ROAD. BANGALORE AND BRANCH AMONGST
OTHER AT MID CORPORATE BRANCH SITUATED
AT 11, R.N.T. MARG. INDORE (MADHYA
PRADESH)
5. ANDHRA BANK, A BANKING COMPANY
CONSTITUTED UNDER THE BANKING
COMPANIES (ACQUISITION AND TRANSFER OF
UNDERTAKINGS) ACT, 1980, THR. CHIEF
MANAGER NOW HAVING BEEN MARGED WITH
THE UNION BANK RESPONDENT NO HAVING ITS
HEAD OFFICE DOCTOR PATTABHI BHAVAN,
SECRETARIAT ROAD, SAIFABAD GYDERABAD
AND ITS BRANCH AMONGST OTHER PLACES AT
335, JAWAHAR MARG, INDORE (MADHYA
PRADESH)
6. DISTRICT MAGISTRATE, CHAMBER NO. 101,
PRASHASNIK SANKUL, MOTI TABELA. INDORE
(MADHYA PRADESH)
7. SHREE MAHESH OIL REFINERY, A PARTNERSHIP
FIRM THR. ITS PARTNER SHRI.
RAMESHCHANDRA TOSHNIWAL 492,
USHANAGAR EXTENSION, INDORE. (MADHYA
PRADESH)
8. COMMERCIAL TAX DEPARTMENT THR. ITS
COMMISSIONER INDORE RANGE, CHETAK
CHETAK CHAMBERS, CIRCLE 14 INDORE
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: VATAN
SHRIVASTAVA
Signing time: 18-05-2024
11:24:09
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(BY SHRI RAMESH CHANDRA SINHAL, ADVOCATE [R-2])
(BY SHRI MANOJ MUNSHI, ADVOCATE [R-7])
(BY SHRI PRATEEK PATWARDHAN, ADVOCATE)
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.
2. This petition under Article 226 of the Constitution of India has been
filed by the petitioner seeking the following reliefs:-
(A) This, Hon'ble Court be pleased to issue a Writ of
Certiorari or a Writ in the nature of Certiorari or any other
appropriate Writ, Order or Direction calling for the records and
proceedings relating to Borrowal account and quash / set aside the
Impugned auction sale dated 04.12.2020 and all the proceedings
arising there from, including the Impugned, executed and
registered sale certificate dated 24.12.2020 and after going
through the legality, validity and propriety thereof, be pleased to
quash and set aside the same.
(B) That, this Hon'ble Court be pleased to issue a Writ of
Prohibition or a Writ in the nature of Prohibition or any other
appropriate writ, direction or order restraining the Respondent
Bank their officials servants and agents in any manner to give
effect to the Impugned Order and the Impugned Notice and further
from acting upon or on the basis of, or in furtherance thereof, or
implementation of the Impugned executed and registered Sale
Certificate dated 24th December 2020 issued by Respondent Bank
(Annexure P/1A) in respect of subject Property, arising out of
auction sale conducted by the Respondent Bank in pursuance to
Impugned E- auction Notice dated 18th December 2020 (Annexure
P/1A).
(C) That, this Hon'ble Court be pleased to direct the
Respondent-Auction purchaser not to create any third party rights
in the subject property on the basis of the executed and registered
sale certificate dated 24.12.2020 in respect of the subject property
and further not to alienate the subject property till the pendency of
the instant Writ Petition.
(D) Cost of the Petition and Order to be made thereon and
grant such further and other relief(s) as the nature and
circumstances of the case may require, in the most expedient
interest of justice, for which the petitioner will remain indebted,
gratified and obliged forever for this act of kindness the humble
petitioner as in duty bound shall ever pray.
3. The fact remains that the maintainability of the writ petition inasmuch
as filing of writ petition by the borrower is an abuse of process of the Court.
The present writ petition has been filed by the borrower against the auction
proceedings and sale executed by the respondent bank under Sections 13(2)
and 13(4) of the SARFAESI Act, 2002. It is undisputed that petitioner has
already filed S.A. No. 247/2019 before DRT, Jabalpur which has been
dismissed vide order dated 18.09.2019. Therefore, after the dismissal of the
said S.A. No. 247/2019, the petitioner per say accrued the right to file an appeal
before DRT under Section 18 of SARFAESI Act and the petitioner ought to
have had availed the alternative remedy of filing the appeal but the petitioner
filed the present petition. In the judgment of Apex Court in the case of Phoenix
ARC Private Limited Vs. Vishwa Bharati Vidya Mandir and Ors. (Civil
Appeal Nos.257-259/2022) reported in (2022) SCC online SC 44, wherein
the Apex Court has held that the High Court ought not have to entertain the writ
petition and issue direction to maintain status-quo. The High Court should be
extremely careful and circumspect in exercising its discretion while granting stay
in such matters. In these circumstances, the proceedings before the High Court
deserves to be set aside. In the judgment of the Apex Court in the case of
Radha Kishnan Industries Vs. State of Himachal Pradesh in (Civil
Appeal No. 1155/2021) reported in (2021) 6 SCC 771, wherein the Apex
Court has held that where an efficacious alternative remedy is available to the
aggrieved person, the High Court has discretion not to entertain a
writ/miscellaneous petition.
4. Recently, the Apex Court in the case of M/S South Indian Bank
Ltd. & Ors. Vs. Naveen Mathew Philip and Anr. 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.
5. 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 under Section 226 of the
Constitution of India without exhausting the alternative remedy available under
the law."
6. In view of the aforesaid and also looking to the fact that the petitioner
without exhausting the alternative efficacious remedy as available to him as per
the SARFAESI Act, therefore, we do not find it proper to entertain this petition.
The petitioner would be at liberty to avail the remedy in accordance with law, if
so advised.
7. Accordingly, the writ petition is hereby dismissed. No order as to
costs.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
Vatan
