Madhya Pradesh High Court
Deceased Mukesh Bare S/O Vishram Bare ... vs The Collector on 24 March, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
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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 24th OF MARCH, 2025
WRIT PETITION No. 9231 of 2025
DECEASED MUKESH BARE S/O VISHRAM BARE THROUGH LRS.
SMT. MAYA BARE AND OTHERS
Versus
THE COLLECTOR AND OTHERS
Appearance:
Shri Mohd. Rafik Sheikh - Advocate for the petitioner.
Shri Bhuwan Gautam - G.A for the respondent/State.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
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 petitioner seeking the following reliefs:-
"i) That, in the interest of justice, it is humbly prayed
that the Hon'ble Court may be pleased to quash
impugned order dated 14.10.2024(Annexure P/1) passed
by the learned Chief Judicial Magistrate, Dhar, District
Dhar (M.P) and subsequent proceedings initiated by
Tehsildar for taking physical possession of the
mortgaged property;
ii) That, the Hon'ble Court maybe pleased to issue other
suitable writ/order/direction to respondent No.2 to
deliver the possession of the subject property back to
the petitioners.
iii) Any other relief which this Hon'ble Court deems fit,
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may also be granted."
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 SARFAESI Act, 2002, herefore, 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]
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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 petitioner
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.
(SUSHRUT ARVIND DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
PK
