Madhya Pradesh High Court
Vijay Kumar vs Srg Housing Finance Ltd. Through ... on 21 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 21 st OF MAY, 2024
MISC. PETITION No. 2742 of 2024
BETWEEN:-
1. VIJAY KUMAR S/O JITENDRA DHAKAD, AGED
ABOUT 30 YEARS, OCCUPATION: AGRICULTURIST
HOUSE NO 737, WARD NO. 16, VIJAY DHAMNAR,
TEHSIL MANDSAUR DIST. MANDSAUR (MADHYA
PRADESH)
2. SHALAGRAM S/O DEVRAM DHAKAD, AGED
ABOUT 82 YEARS, OCCUPATION: AGRICULTURE
HOUSE NO 737, WARD NO. 16, VILLAGE
DHAMNAR, TEHSIL MANDSAUR DISTRICT
MANDSAUR (MADHYA PRADESH)
3. JITENDRA KUMAR S/O SHALAGRAM DHAKAD,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURIST HOUSE NO 737, WARD NO. 16,
VILLAGE DHAMNAR, TEHSIL MANDSAUR
DISTRICT MANDSAUR (MADHYA PRADESH)
4. KAMLABAI S/O JITENDRA DHAKAD, AGED
ABOUT 47 YEARS, OCCUPATION: AGRICULTURIST
HOUSE NO 737, WARD NO. 16, VILLAGE
DHAMNAR, TEHSIL MANDSAUR DISTRICT
MANDSAUR (MADHYA PRADESH)
5. NILESH S/O JANKILAL DHAKAD OCCUPATION:
AGRICULTURIST HOUSE NO 792, WARD NO 16,
VILLAGE DHAMNAR TEHSIL MANDSAUR
DISTRICT MANDSAUR (MADHYA PRADESH)
6. SATYANARAYAN S/O MANGILAL DHAKAD
OCCUPATION: AGRICULTURIST HOUSE NO 690,
WARD NO 13, VILLAGE DHAMNAR TEHSIL
MANDSAUR DISTRICT MANDSAUR (MADHYA
PRADESH)
.....PETITIONER
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 22-05-2024
14:42:49
2
(BY MS. ARCHANA MAHESHWARI, ADVOCATE)
AND
SRG HOUSING FINANCE LTD. THROUGH AUTHORIZE
OFFICER SHRI MAYANK SISODIYA S/O KARANSINGH
SISODIYA OFFICE 321, S.M. LODA COMPLEX, SHASTRI
CIRCAL UADIAPUR, RAJASTHAN (RAJASTHAN)
.....RESPONDENTS
(NONE FOR THE RESPONDENT)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
ORDER
This petition under Article 227 of the Constitution of India has been filed
challenging the order dated 09.11.2023 passed by the Chief Judicial Magistrate,
Mandsaur, whereby the application filed by the respondent under Section 14 of
the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act (in short 'SARFAESI Act') has been allowed. The
petitioners are seeking following reliefs:-
"A. That, order dated 09.11.2023 Annexure P/1 be set aside;
B. Costs of petition;
C. Pass any other appropriate order in favour of petitioner as may be deemed
fit just & expedient in the interest of justice."
02. Brief facts of the case are that petitioner No.1 availed a loan of
Rs.8,00,000/- from the respondent secured by way of equitable mortgage of
property house situated at Ward No.13, Village - Dhamnar, Tehsil & District -
Mandsaur, which is in the name of petitioner No.2. As the petitioners failed to
pay the installment of the loan amount, the respondent issued a demand notice
under Section 13(2) of the SARFAESI Act which was sent by post on
23.03.2021. Thereafter, on 28.08.2021, notice was published in Hindi
newspaper. Despite the aforesaid notice as the loan amount was not paid, the
respondent took action to take possession of the land under Section 13(4) of
the SARFAESI Act. Thereafter, respondent approached the Additional
Collector and the Additional Collector vide order dated 26.08.2022 claim of the
respondent has been rejected. Thereafter, the respondent approached the Chief
Judicial Magistrate, Mandsaur by way of an application under Section 14 of the
SARFAESI Act and vide order dated 09.11.2023, the application was allowed
by directing the Tehsildar to issue a letter to the petitioners to hand over the
possession of the land to the respondent. Being aggrieved by the said order, the
present petition has been filed.
03. Learned counsel for the petitioners submits that the order passed by
the Chief Judicial Magistrate is bad in law as no opportunity of hearing was
given to the petitioners to defend the application.
04. Heard learned counsel for the appellant.
05. The fact remains that the maintainability of the miscellaneous petition
inasmuch as filing of miscellaneous petitions by the borrower is an abuse of
process of the Court. The present petition has been filed by the borrower
against the proposed action to be taken under Sections 13(2) and 13(4) of the
SARFAESI Act, 2002, therefore, this miscellaneous petition is premature and
not maintainable. Even assuming that action is proposed under Section 13(4) of
the Act, statutory efficacious remedy is available to the petitioner to file an
appeal under Section 17 of the SARFAESI Act. In the judgment of Apex Court
in the case of Phoenix ARC Private Limited v/s Vishwa Bharati Vidya
Mandir & Others (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 v/s 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.
06. Recently, the Apex Court in the case of M/S South Indian Bank
Ltd. & Ors. v/s Naveen Mathew Philip & Another reported in [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 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.
07. 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.
08. In view of the aforesaid and also looking to the fact that the petition is
premature, 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.
09. Accordingly, Miscellaneous petition stands dismissed. However,
there shall be no order as to cost.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
