Madhya Pradesh High Court
Amit Kumar Surajmukhi vs Adhar Housing Finance Ltd. on 15 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 15th OF JANUARY, 2025
WRIT PETITION No. 39324 of 2024
AMIT KUMAR SURAJMUKHI AND OTHERS
Versus
ADHAR HOUSING FINANCE LTD. AND OTHERS
Appearance:
Ms. Durgesh Thapa, learned counsel for the petitioners.
Shri S.S. Chouhan, learned Government Advocate for the respondent/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
Heard on the question of admission and interim relief.
This petition under Article 226 of the Constitution of India has been
filed by the petitioners seeking the following reliefs:
(1) This Honble Court may kindly be pleased to set aside the
impugned order passed by A.D.M. Jabalpur Case No.0249/B-121/ 2023-24
vide order dated 28/11/2023 and order of DRT Jabalpur dated 23.09.2024 in
S A No. 112/2024, in the interest of justice.
(2) Any other order or direction which is deemed fit under the
circumstances of the case may kindly be granted for the interest of justice.
2. The brief facts of the case are that the petitioner No.1/husband and
petitioner No.2/wife had applied for home loan of Rs.8,50,660/- before the
respondent No.1. The petitioner has already deposited the amount of
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Rs.7,95,130/- out of total loan amount and now only an amount of
Rs.55,000/- is left. The respondent No.1 filed a case before Additional
District Magistrate (Rural), District Jabalpur to occupy the possession of the
house, without issuing notice to the petitioners. Vide order dated 28.11.2023,
the ADM directed the Tehsildar to occupy the possession of the house of the
petitioners under Section 13(2) of the SARFAESI Act, 2002 for recovery of
loan amount. Being aggrieved by the order dated 28.11.2023, the petitioners
approached the Debts Recovery Tribunal Jabalpur and filed Second Appeal
under Section 17(1) of the Securitization Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002. The DRT, vide order dated
26.03.2024, has condoned the delay in filing the second appeal subject to
depositing of Rs.20,000/- within 10 working days, however the petitioners
has neither deposited the amount nor filed any application for extension of
time. Due to non-compliance of the peremptory order dated 26.03.2024, the
DRT has dismissed the second appeal as having rendered infructuous, vide
order dated 23.09.2024. Being aggrieved, the petitioners have filed the
present writ petition.
3. Heard counsel for the parties and perused the record.
4 . 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 borrowers 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. 53/2023 before DRT, Jabalpur which
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has been dismissed vide order dated 05/03/2024. Therefore, after the
dismissal of the said S.A. No. 53/2023, the petitioner per say accrued the
right to file an appeal before DRT under Section 18 of SARFAESI Act and
the petitioners ought to have had availed the alternative remedy of filing the
appeal but the petitioners filed the present petition.
5. 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.
6. 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
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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.
7. 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."
8 . 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.
9. Accordingly, the writ petition is hereby dismissed.
No order as to costs.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ak
