Madhya Pradesh High Court
Shriman Narayan Agrawal ... vs Idbi Bank Ltd. on 23 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 23 rd OF JANUARY, 2025
WRIT PETITION No. 1135 of 2025
SHRIMAN NARAYAN AGRAWAL (BORROWER/MORTGAGOR) AND
OTHERS
Versus
IDBI BANK LTD. AND OTHERS
Appearance:
Shri Indramani Dubey - learned counsel for the petitioners.
Shri R.D. Pararha - learned Government Advocate for the respondent Nos. 2 and
3/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) Issue a writ in the nature of mandamus directing the
Respondent No.1 to produce the relevant bank statementin respect of
remaining outstanding amount.
(2) Issue a writ in the nature of mandamus directing the
Respondent No.1 to extend the repayment of outstanding amountto the
petitioners as per the Reserve Bank of India's guidelines.
(3) Issue a writ in the nature of certiorari to quash the impugned
order dated 06.11.2024 passed by the Respondent No.2 vide Annexure
P/5.
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(4) Issue any other writ, order or direction as this Hon'ble Court
deems fit.".
2. The brief facts of the case are that the petitioners applied the cash credit
limit loan amounting to Rs.4,50,00,000/- and same has been disbursed in favour of
the petitioner in relation with Loan Against Property A/C No.
16286751000000161 by model sanction letter for restructuring with easy premium
monthly EMIs. However, the petitioners started repayment to the respondent
No.1, however, due to some financial crises, they stopped repayment of
outstanding loan amount to respondent No.1, therefore, the loan account of the
petitioners was declared as NPA. On 03/04/2024, the respondent No.1 issued the
notice under Section 13(2) of the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 (for short SARFAESI Act
hereinafter) against the petitioners and subsequent thereto, on 10/06/2024 issued
notice under Section 13(4) of the SARFAESI Act for vacant possession of
mortgaged property. Thereafter, respondent No.1 filed an application under
Section 14 of the SARFAESI Act before the Court of District Magistrate,
Chhatarpur (M.P.) against the petitioners. Petitioners have filed the detail reply of
the said application. Respondent No.2, vide order dated 06/11/2024 (Annexure
P/5), directed the respondent No.3 to take over the possession of mortgage
property and handed over the same to the respondent No.1 i.e. land/house bearing
Khasra No. 1833/1/2 area 0.042 hectare situated at Mouja Khajuraho P.H. No. 31,
Ward No. 7, Bamitha Road, Tahsil Rajnagar, District Chhatarpur (M.P.). Being
aggrieved by the impugned order the petitioners have preferred instant 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 borrowers is an abuse of process of the
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Court. Admittedly, the petitioners have an alternative remedy to approach before
learned DRT under Section 17 of the SARFAESI Act by way of filing
Securitization Application against impugned order, however, without availing
such alternative remedy, the petitioners have directly approached before this
Court.
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 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. The Apex Court has also deprecated the
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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 petitioners
without exhausting the alternative efficacious remedy as available to them as per
the SARFAESI Act, therefore, 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.
9. Accordingly, the writ petition is hereby dismissed.
No order as to costs.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
skt
