Madras High Court
R.Sivakumar vs The Chief Judicial Magistrate on 1 October, 2021
W.P(MD)No.17927 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
AND
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
W.P(MD)No.17927 of 2021
and
W.M.P(MD)Nos.14797 and 14798 of 2021
R.Sivakumar ... Petitioner
Vs.
1.The Chief Judicial Magistrate,
Madurai,
Madurai District.
2.M/s. IDFC First Bank Ltd.,
represented by its Authorized Officer,
C.Kannan,
S/o L.Chandramani,
No.79/2, 1st Floor,
Rajabarley Complex,
Bye-pass Road,
Near Rathina Hospital,
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the
records pertaining to the impugned order passed by the first
respondent in Cr.M.P.NO.716 of 2020, dated 28.07.2021 and quash
the same as illegal, arbitrary and consequently direct the second
respondent not to take any further action based on the impugned
order.
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1/6
W.P(MD)No.17927 of 2021
For Petitioner : Mr.P.Krishnasamy
ORDER
(Order of the Court was made by M.DURAISWAMY,J.)
The petitioner has filed the above Writ Petition to issue a Writ
of Certiorarified Mandamus to call for the records pertaining to the
impugned order, passed by the first respondent in Cr.M.P.NO.716 of
2020, dated 28.07.2021 and quash the same and consequently
direct the second respondent not to take any further action based
on the impugned order.
2. The petitioner has challenged the order passed under
Section 14 of the SARFAESI Act by the Chief Judicial Magistrate
Madurai, in this writ petition. When the petitioner has got an
alternate remedy available to him under Section 17 of the
SARFAESI Act, the petitioner without exhausting the same, for filing
the above writ petition, the Honourable Supreme Court in the
following judgments held that the writ petition filed by the aggrieved
party challenging the proceedings initiated under the SARFAESI Act,
is not maintainable.
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W.P(MD)No.17927 of 2021
3.In Authorized Officer, State Bank of Travancore and
another Vs. Mathew K.C., reported in (2018) 3 SCC 85, wherein
the Hon'ble Supreme Court held as follows:-
“16.The Writ Petition ought to have been entertained
and the interim order granted for the mere asking without
assigning special reasons, and that too without even
granting opportunity to the appellant to contest the
maintainability of the Writ Petition and failure to notice the
subsequent developments in the interregnum. The opinion
of the Division Bench that the counter-affidavit having
subsequently been filed, stay/modification could be sought
of the interim order cannot be considered sufficient
justification to have declined interference.
17.We cannot help but disapprove the approach of
the High Court for reasons already noticed in Dwarikesh
Sugar Industries Limited Vs. Prem Heavy Engineering
Works (P) Limited 1997 (6) SCC 450, observing:-
'32.When a position, in law, is well settled as a result
of judicial pronouncement of this Court, it would amount to
judicial impropriety to say the least, for the subordinate
Courts including the High Courts to ignore the settled
decisions and then to pass a judicial order which is clearly
contrary to the settled legal position. Such judicial
adventurism cannot be permitted and we strongly
deprecate the tendency of the subordinate Courts in not
applying the settled principles and in passing whimsical
orders which necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is time that
this tendency stops”.
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W.P(MD)No.17927 of 2021
4.In ICICI Bank Limited and others v. Umakanta
Mohapatra and others reported in (2019) 13 SCC 497, wherein
the Hon'ble Supreme Court held as follows:-
“2.Despite several judgments of this Court,
including a Judgment by Hon'ble Navin Sinha, J., as
recently on 30.01.2018 in State Bank of Travancore V.
Mathew K.C (2018) 3 SCC 85, the High Courts continue to
entertain matters which arise under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (SARFAESI), and keep
granting interim orders in favour of persons who are non-
performing assets (NPAs).
3.The Writ Petition itself was not maintainable, as a
result of which, in view of our recent judgment, which has
followed earlier Judgments of this Court held as follows:-
“17.We cannot help but disapprove the approach of
the High Court for reasons already noticed in Dwarikesh
Sugar Industries Limited Vs. Prem Heavy Engineering
Works (P) Limited 1997 (6) SCC 450, observing:-
'32.When a position, in law, is well settled as a
result of judicial pronouncement of this Court, it would
amount to judicial impropriety to say the least, for the
subordinate Courts including the High Courts to ignore
the settled decisions and then to pass a judicial order
which is clearly contrary to the settled legal position.
Such judicial adventurism cannot be permitted and we
strongly deprecate the tendency of the subordinate
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.17927 of 2021
Courts in not applying the settled principles and in
passing whimsical orders which necessarily has the effect
of granting wrongful and unwarranted relief to one of the
parties. It is time that this tendency stops”.
4.The Writ Petition, in this case, being not
maintainable, obviously, all orders passed must perish,
including the impugned order, which is set aside.
5.The appeals are allowed in the aforesaid terms.
Pending applications, if any, shall stand disposed of.”
5. In view of the ratio laid down by the Honourable Supreme
Court in the above referred judgments, we are of the considered
view that the writ petition filed by the petitioner is not maintainable.
Accordingly, the Writ Petition is dismissed. However, it is open to
the petitioner to challenge the order passed by the Chief Judicial
Magistrate, Madurai before the Debts Recovery Tribunal in
accordance with law. No costs. Consequently, the connected
Miscellaneous Petitions are closed.
[M.D.,J] [K.M.S.,J.]
01.10.2021
Index :Yes/No
Internet :Yes/No
SSL/LR
https://www.mhc.tn.gov.in/judis/
W.P(MD)No.17927 of 2021
M.DURAISWAMY,J.
and
K.MURALI SHANKAR,J.
SSL/LR
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
1.The Chief Judicial Magistrate,
Madurai,Madurai District.
2. C.Kannan
Authorized Officer,
M/s. IDFC First Bank Ltd.,
No.79/2, 1st Floor,
Rajabarley Complex,
Bye-pass Road,
Near Rathina Hospital,
Madurai.
W.P(MD)No.17927 of 2021
01.10.2021
https://www.mhc.tn.gov.in/judis/
