Madhya Pradesh High Court
M/S Chanda Enterprises A ... vs Reliance Assets Construciton Company ... on 28 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJ MOHAN SINGH
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 28 th OF MAY, 2024
MISC. PETITION No. 1498 of 2024
BETWEEN:-
1. M/S CHANDA ENTERPRISES A PROPRIETORSHIP
CONCERN THROUGH ITS PROPRIETOR SMT
CHANDRAKANTA JAIN R/O AT PLOT NO 9 BLOCK
NO 3 PART OF SHEET NO 16 WARD NO 3 NEW BUS
STAND SEHORE (MADHYA PRADESH)
2. SMT. CHANDRAKANTA JAIN W/O SHRI DHAN
KUMAR JAIN, AGED ABOUT 67 YEARS, NEAR BUS
STAND SEHORE (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI AARISH HYDER -ADVOCATE)
AND
1. RELIANCE ASSETS CONSTRUCTION COMPANY
LIMITED THROUGH ITS AUTHORIZED OFFICER
REG. OFFICE AT RELIANCE CENTRE 6TH FLOOR
NORTH WING OFF WESTERN EXPRESS HIGHWAY
SANTACRUZ ( EAST) MUMBAI (MAHARASHTRA)
2. DISTRICT MAGISTRATE COLLECTORATE
SEHORE DISTRICT SEHORE (MADHYA PRADESH)
3. THE TAHSILDAR, TAHSIL SEHORE DISTRICT
SEHORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SHARMA -GOVERNMENT ADVOCATE FOR
RESPONDENT/STATE)
This petition coming on for admission this day, Justice Raj Mohan
Singh passed the following:
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 30-05-2024
11:28:43
2
ORDER
The petitioners have preferred the aforesaid miscellaneous petition against
the orders dated 17.01.2022 (Annexure P-2) and 04.03.2024 (Annexure P-5)
passed by the Collector, Sehore and the Presiding Officer, Debt Recovery
Tribunal, Madhya Pradesh respectively. Vide the aforesaid impugned order
dated 04.03.2024, the Presiding Officer, Debt Recovery Tribunal, Madhya
Pradesh has passed conditional order while granting the interim prayer to the
petitioners. The petitioners having aggrieved by onerous conditions imposed in
the impugned orders have preferred the present petition in this case.
2. Learned counsel for the petitioners submitted that in the facts and
circumstances of the case, imposition of onerous conditions are not permissible
in law and this court has jurisdiction to intervene even in the presence of
alternative remedy under Section 18 of The Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act, 2002.
3. For ready reference section 18 of the Act of 2002 is reproduced as
under:-
18. Appeal to Appellate Tribunal.--
(1) Any person aggrieved, by any order made by the
Debts Recovery Tribunal [under section 17, may prefer
an appeal alongwith such fee, as may be prescribed] to
the Appellate Tribunal within thirty days from the date of
receipt of the order of Debts Recovery Tribunal.
[Provided that different fees may be prescribed for filing an
appeal by the borrower or by the person other than the
borrower:]
[Provided further that no appeal shall be entertained unless
the borrower has deposited with the Appellate Tribunal fifty
per cent. of the amount of debt due from him, as claimed by
the secured creditors or determined by the Debts Recovery
Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the
reasons to be recorded in writing, reduce the amount to
not less than twenty-five per cent. of debt referred to in the
second proviso.
(2) Save as otherwise provided in this Act, the Appellate
Tribunal shall, as far as may be, dispose of the appeal in
accordance with the provisions of the Recovery of Debts
Due to Banks and Financial Institutions Act, 1993 (51 of
1993) and rules made thereunder."
4. Perusal of the aforesaid section would indicate that the aggrieved party
against any order made by the Debt Recovery Tribunal under section 17 may
prefer an appeal before the Appellate Tribunal within a period of 30 days from
the date of receipt of the order of the DRT. Instead of filing an appeal before
the DRT against the impugned order, the petitioners have preferred the present
miscellaneous petition on 10.03.2024.
5. Learned counsel for the petitioners by referring to the order dated 05th
October, 2023 passed in M.P No. 3786 of 2023 submits that this Court has
jurisdiction to intervene in the facts and circumstances of the case as the DRT
cannot pass conditional orders thereby putting onerous conditions.
6. The Hon'ble Apex Court vide order dated 10.04.2024 passed in Civil
Appeal No. 4845 of 2024 (PHR Invent Educational Society Vs. UCO Bank
& others) arising out of SLP (C) No.8867 of 2022 has categorically held that in
the presence of alternative remedy, the High Court should not have intervened in
the impugned order. For ready reference paragraphs 29 to 35 are reproduced as
under:-
" 29. It could thus clearly be seen that the Court has
carved out certain exceptions when a petition under
Article 226 of the Constitution could be entertained in
spite of availability of an alternative remedy. Some of
them are thus:
(i) where the statutory authority has not acted in
accordance with the provisions of the enactment in question;
(ii) it has acted in defiance of the fundamental
principles of judicial procedure;
(iii) it has resorted to invoke the provisions which are
repealed; and
(iv) when an order has been passed in total violation of
the principles of natural justice.
30. It has however been clarified that the High Court will not
entertain a petition under Article 226 of the Constitution if an
effective alternative remedy is available to the aggrieved
person or the statute under which the action complained of has
been taken itself contains a mechanism for redressal of
grievance.
31. Undisputedly, the present case would not come under
any of the exceptions as carved out by this Court in the case
of Chhabil Dass Agarwal (supra).
32. We are therefore of the considered view that the High
Court has grossly erred in entertaining and allowing the
petition under Article 226 of the Constitution.
33. While dismissing the writ petition, we will have to
remind the High Courts of the following words of this Court
in the case of Satyawati Tondon (supra) since we have
come across various matters wherein the High Courts have
been entertaining petitions arising out of the DRT Act and
the SARFAESI Act in spite of availability of an effective
alternative remedy:
"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 the 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."
34. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The impugned order dated 4th February 2022 passed
by the High Court in Writ Petition No. 5275 of 2021 is
quashed and set aside; and
(iii) Writ Petition No. 5275 of 2021 is dismissed with
costs quantified at Rs.1,00,000/- imposed upon the
Borrower.
35. Pending application(s), if any, shall stand disposed of."
7. The aforesaid judgment has been circulated to all the High Courts for
strict compliance. In the light of the observations made by the Hon'ble Apex
Court, there is no scope to intervene in the present miscellaneous petition.
However, the petitioners, if so advised, may file statutory appeal in accordance
with law along with an application for condonation of delay. The time spent
during pendency of present petition may be pleaded in the application for
condonation of delay. In the event of filing of an appeal along with an
application for condonation of delay, then the Appellate Tribunal shall consider
the same strictly in accordance with law without being influenced by any of the
observations made hereinabove.
With the aforesaid this miscellaneous petition is disposed of.
(RAJ MOHAN SINGH) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
tarun
