Madhya Pradesh High Court
Babulal vs I.D.B.I. Bank Limited Through ... on 22 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 22 nd OF MAY, 2024
WRIT PETITION No. 12733 of 2024
BETWEEN:-
1. BABULAL S/O BHERULAL JI AGRAWAL, AGED
ABOUT 75 YEARS, OCCUPATION: BUSINESS AGAR,
TEHSIL AGAR DISTRICT AGAR (MADHYA
PRADESH)
2. OMPRAKASH S/O BHERULAL JI AGRAWAL, AGED
ABOUT 70 YEARS, OCCUPATION: BUSINESS AGAR,
TEHSIL AGAR, DISTRICT AGAR (MADHYA
PRADESH)
.....PETITIONERS
(SHRI PUSHPRAJ SINGH RATHORE, LEARNED COUNSEL FOR THE
PETITIONERS)
AND
1. I.D.B.I. BANK LIMITED THROUGH PRADHIKAR
ADHIKARI SHRI MAHENDRA AGRAWAL S/O SHRI
KAILASH AGRAWAL SHAKHA T.T. NAGAR, NEW
MARKET BHOPAL (MADHYA PRADESH)
2. M/S SWASTIK OIL MIL PROPRIETOR SHRI
PURUSHOTTAM AGRAWAL S/O SHRI
RAMPRASAD AGRAWAL, R/O SWASTIK OIL MIL
BADOD ROAD, S.P. BANGLE KE SAMNE AGAR,
JILA AGAR (MADHYA PRADESH)
3. SHRI PURUSHOTTAM AGRAWAL S/O SHRI
RAMPRASAD AGRAWAL PATMA GALI AGAR
TEHSIL AGAR, JILA AGAR (MADHYA PRADESH)
4. SHRI PRADEEP AGRAWAL S/O SHRI RAMPRASAD
AGR AWAL PATMA GALI AGAR TEHSIL AGAR,
JILA AGAR (MADHYA PRADESH)
Signature Not Verified
Signed by: PREETHA HARI
NAIR
Signing time: 27-05-2024
17:59:07
2
.....RESPONDENTS
( SHRI BHAVIL PANDEY, LEARNED COUNSEL FOR THE RESPONDENT
[R-1] THOUGH V.C.)
T h is 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 petitioners seeking the following reliefs:-
7. सहायकता जो चाही है : -
(7.1) यह िक, यािचकाकता क certiorari यािचका को स्वीकार फरमाया जाकर
िदनांक 02.05.2024 के आदेश को िनरस्त करने क कृपा कर। ।
(7.2) अन्य जो भी सहायता यािचककाता पाने के पा हो वह दान क जावे।
3. The fact remains that the maintainability of the writ petition inasmuch
as filing of writ petitions by the borrower is an abuse of process of the Court.
The present writ petition has been filed by the borrower against the proposed
action to be taken by the respondent under Sections 13(2) and 13(4) of the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter referred to as .... "SARFAESI Act"),
2002, therefore, this writ 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 application under
Section 17 of the SARFAESI Act. 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 petition is
premature, we do not find it proper to entertain this petition.The petitioners
would be at liberty to avail the remedy in accordance with law, if so advised.
7. Accordingly, the writ petition is hereby dismissed.
8. No order as to cost.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
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