Research › Search › Judgment

Madhya Pradesh High Court · body

2024 DIGILAW 48 (MP)

Harsh Solanki v. State of M. P.

2024-01-09

DEVNARAYAN MISHRA, S.A.DHARMADHIKARI

body2024
ORDER Heard on the question of admission and interim relief. Dharmadhikari, J:- 1. The present petition under Article 226/227 of the Constitution of India has been filed by the petitioners being aggrieved by the action of respondent no.1/Addnl District Magistrate in not considering the objections raised by the petitioners. 2. Brief facts of the case are that petitioners who are the borrowers have availed loan facility from the respondent no.2/bank on equitable mortgage of Plot No. 53, East Part, Shriramnagar Colony Village Gujarkhedia, Mhowgaon(referred to as "property in question" hereinafter). Thereafter, petitioners' accounts were classified as NPA. The respondent No.1/Bank initiated proceedings against the petitioners under section 13(1) of the SARFAESI Act and thereafter filed application before the respondent No.1 u/S 14 of the SARFAESI Act. The Additional District Magistrate, Indore/respondent No.1 directed the petitioners to personally remain present before him alongwith reply and necessary documents vide order dated 20.01.2023 (Annexure P-1) . After receipt of the said order, petitioners have submitted their objections. It is the apprehension of petitioners that without considering the said objections, respondent no.1 will proceed to decide the application under section 14 of the SARFAESI Act for handing over the physical possession of the property in question to the respondent No.2/bank. Hence, the present petition is filed. 3. Learned counsel for the petitioners submits that entire proceedings initiated by the respondents under the provisions of SARFAESI Act are illegal and bad in law. Petitioners are remedy less and apprehends dispossession from the property in question without there being any fault on their part. Respondent No.2 without complying with the provisions of 13 of SARFAESI Act has moved before the respondent no.1 by filing an application u/S 14 of the SARFAESI Act. Petitioners have submitted objection dated 03.05.2023 wherein it has been stated that respondent no.2/bank had informed the petitioners that their accounts have been classified as NPA. On the basis of said information, petitioners have deposited Rs. 3,49,935 in the account. Respondent No.2/bank assured that the accounts of petitioners will be regularized. However, without issuing notice u/S Section 13(2) and 13(4) of the SARFAESI Ac had filed application u/S 14 of the SARFAESI Act before the respondent No.1. Respondent No.1 has issued notice of personal presence whereby petitioners have submitted their written objections. 3,49,935 in the account. Respondent No.2/bank assured that the accounts of petitioners will be regularized. However, without issuing notice u/S Section 13(2) and 13(4) of the SARFAESI Ac had filed application u/S 14 of the SARFAESI Act before the respondent No.1. Respondent No.1 has issued notice of personal presence whereby petitioners have submitted their written objections. Hence, respondent No.1 be directed to decide the application u/S 14 of the SARFAESI Act after considering the objections raised by the petitioners 4. Learned counsel for the respondent/State submitted that petitioners have approached this Court merely on the basis of apprehension as no such order has been annexed with the petition wherein respondent No.1/ADM has proceeded to decide the application u/S 14 of the SARFAESI Act and petitioners have been directed to hand over the possession of the property in question. Even otherwise, if any such order deciding the application u/S 14 of the SARFAESI Act is passed, petitioners can very well avail the statutory remedy available under the law by approaching the DRT, Jabalpur u/S 17 of the SARFAESI Act . 5. We have heard learned counsel for parties and perused the record. 6. From the pleadings as well as the arguments , it appears that the said petition has been filed only seeking protection against dispossession, that too merely on apprehension as on perusal of the entire record, we do not find order of the respondent No.1/Addnl District Magistrate deciding the application u/S 14 of the SARFAESI Act filed by the respondent No.2/Bank. Hence, we find no reason to entertain this petition. 7. The apex Court in the case of ICICI Bank Limited and others v. Umakanta Mohapatra and others [ (2019) 13 SCC 497 ] has held as follows: "2. Despite several judgments of this Court, including a judgment by Hon'ble Navin Sinha, J., as recently as on 30- 1-2018, in State Bank of Travancore v. Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] , 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 nonperforming 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: (SCC p. 94, para 17) 1 7 . We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. [Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd., (1997) 6 SCC 450 ] , observing: (SCC p. 463, para 32) 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 ef ect 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. P e n d i n g applications, if any shall stand disposed of.” (Emphasis supplied) 8. Apart from this, the apex Court in the case of Kalabharti Advertising v. Hemant Vimalnath Narichania and Others (2010) 9 SCC 437 has poignantly held as under: 22. It is a settled legal proposition that the forum of the writ Court cannot be used for the purpose of giving interim relief as the only and the final relief to any litigant. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. If the Court comes to the conclusion that the matter requires adjudication by some other appropriate forum and relegates the said party to that forum, it should not grant any interim relief in favour of such a litigant for an interregnum period till the said party approaches the alternative forum and obtains interim relief. (vide: State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 ; Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305 ; State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685 ; State of Bihar v. Rambalak Singh "Balak" & Ors., AIR 1966 SC 1441 ; and Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke & Ors., AIR 1975 SC 2238 ). 9. Recently, the apex Court in the case of M/S South Indian Bank Ltd. & Ors. v. Naveen Mathew Philip & Anr. Etc 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 noncompliance 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. 10. 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 u/S 226 of the Constitution of India without exhausting the alternative remedy available under the law.” 11. In the light of the aforesaid pronouncements of the apex Court, this Court is not inclined to entertain the writ petition. 12. Accordingly, the petition is hereby dismissed.