Madhya Pradesh High Court
Sujata Arora vs The State Of Madhya Pradesh on 29 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 29 th OF MAY, 2024
WRIT PETITION No. 15235 of 2024
BETWEEN:-
SUJATA ARORA W/O SHRI YOGESH ARORA, AGED
ABOUT 55 YEARS, OCCUPATION: SELF EMPLOYED 401,
RUPAYATAN APPT. 31/4, NEW PALASIA, INDORE
(MADHYA PRADESH)
.....PETITIONER
(SHRI AJAY BAGADIA - SR ADVOCATE WITH SHRI DEVANSH AWAL -
ADVOCATE FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH ADDITIONAL
DISTRICT MAGISTRATE COLLECTOR OFFICE
INDORE (MADHYA PRADESH)
2. THE TEHSILDAR JUNI INDORE COLLECTORATE
INDORE (MADHYA PRADESH)
3. THE AUTHROISED OFFICER INDUSLAND BANK,
ONE INDIABULLS CENTRE, 11TH FLOOR, TOWER
1, 841 SENAPATI BAPATMARG, ELPHINSTONE
ROAD, MUMBAI (MAHARASHTRA)
4. M/S AROPRINT GLOBAL PVT. LTD. S-4/4, RAU
PTHAMPUR LINK ROAD, SECTOR-1, INDUSTRIAL
AREA, PITHAMPUR, DHAR (MADHYA PRADESH)
.....RESPONDENTS
( SHRI BHUWAN GAUTAM - GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE)
This petition coming on for admission this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 30-05-2024
17:29:45
2
ORDER
Heard on the question of admission and interim relief.
This petition under Article 226 of the Constitution of India has been filed
by the petitioner against the order dated 03.05.2024 passed by respondent no.1
as well as order dated 30.01.2023 passed by the respondent no.3.
2. The brief facts of the case are that out of the three mortgaged
property, one of the property bearing Patwari Halka No. 17 Survey No. 203
Palki Village Lasudia Mori Teh & Distt. Indore was owned by Yogesh
Arora(guarantor) i.e. the husband of petitioner herein which has been received
by the petitioner through registered relinquishment deed dated 17.06.2022
executed before the Registrar of Assurances and since then the petitioner was
the owner of the said property. The respondent no.4 had approached
respondent no. 3 for availing credit facility to the tune of Rs. 2 crores on
equitable mortgage of three properties including the property of petitioner. Due
to default in repayment, the account of the respondent no.4 was declared as
NPA. Thereafter, respondent no. 3 had initiated proceedings under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002[referred to as 'SARFAESI Act' hereinafter]and
without complying with the provisions of Section 13(4) of SARFAESI Act,
respondent no.3/Bank has filed an application u/S 14 before the respondent
no.1 which was allowed vide order dated 03.05.2024 with direction to the
respondent no. 2/Tehsildar to hand over the vacant possession of the
mortgaged properties to the respondent no.3/Bank. Hence, the present petition
has been filed.
3. Learned counsel for the petitioner contended that by way of
impugned order, the rights of the petitioner have been infringed. Respondent
no.3/bank has not followed the mandatory provisions of SARFAESI Act and
petitioner was deprived of filing of statutory objection u/S 13(3-A) of the
SARFAESI Act. The respondent no.4/Company has replied to the notice u/S
13(2) of the SARFAESI Act wherein it has been categorically mentioned that
the property has been relinquished on 17.06.2022 by the guarantor i.e. the
husband of the petitioner in her favour and since then she became the owner of
the said property. But ignoring the said reply, respondent no.3/bank has moved
application u/S 14 of the SARFAESI Act resulting into passing of the impugned
orders. Hence, it is prayed that the petition be allowed and the impugned
orders be quashed.
4. Learned counsel for the respondent/State submitted that petitioner is
having alternative remedy of filing securitization application, instead of
challenging the orders passed by the respondent no.1 and 2 before this Court.
Hence, the present petition is not maintainable in view of availability of
alternative remedy.
5. Heard learned counsel for the parties and perused the record.
6. This Court finds force in the submission made by counsel for the
respondent/State as regards maintainability of the writ petition in view of
availability of alternative remedy u/S 17 of the SARFAESI Act. Moreso, filing
of writ petition by the relinquishment deed holder is an abuse of process of the
Court and the correct course available to the petitioner being relinquishment
deed holder is to approach the Debt Recovery Tribunal (DRT) by filing an
application under the SARFAESI Act, but the petitioner has chosen to
approach this Court by filing the present petition.
7. The Hon'ble Apex Court in catena of judgments has time and again
held that the High Courts ought not to have entertain the writ petitions where
alternative efficacious remedy are available to the litigants which are as follows:
(i) In 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, 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.
(ii) In case of Radha Kishnan Industries Vs. State of Himachal
Pradesh in (Civil Appeal No. 1155/2021) reported in (2021) 6 SCC 771,
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.
(iii) Recently, the Apex Court in case of M/S South Indian Bank
Ltd. & Ors. Vs. Naveen Mathew Philip and Anr. Etc. reported in [2023
Livelaw (SC) 320] has deprecated the practice adopted by the High Courts
whereby the writ petitions are being entertained in SARFAESI Act 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.
8 . 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."
9. In view of the various enunciation of Apex Court as mentioned above
and also looking to the fact that the petitioner without exhausting the alternative
efficacious remedy as available to her as per the SARFAESI Act has
approached this Court, we do not find it proper to entertain this petition.
However, the petitioner would be at liberty to avail remedy in accordance with
law, if so advised.
10. Accordingly, the writ petition is hereby dismissed. No order as to
costs.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sh
