The main legal point established in the judgment is that the availability of an alternative remedy under the Act may render a writ petition under Article 226 not maintainable.

ORDER

1. Heard finally, with the consent of the parties.

2. In this writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality, validity and propriety of the order dated 18.08.2021(Anexure-P/5) passed by the respondent No.2 by which the proceedings under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(herein after referred to as .. "the Act of 2002")have been initiated against the property owned by the petitioner.

3. The brief facts leading to filing of the case are that the petitioner had purchased the house in question situated at House No.6, Bholenath Colony, village Sitapur, Pargana, Tehsil and District Indore(M.P.) vide registered sale-deed dated 30.05.2017 from the respondent Nos.3 and 4. After execution of the registered sale-deed, the respondents No.3 and 4 mortgaged the said house to the respondent No.2 without having any title in the property whatsoever and obtained loan from the Bank. The Bank without any verification took the property under mortgage from the respondents No.3 and 4 for which the petitioner cannot be made to suffer. A private complaint has also been filed against the respondents No.3 and 4 to show their bonafides. The petitioner also submitted a complaint against the respondent No.2/Bank before the Banking Ombudsman. However, no action was taken either by the police authorities or by the banking ombudsman, therefore, the petitioner had filed a private complaint before the learned Judicial Magistrate First Class, Indore(M.P.) which is pending adjudication. Even after issuance of notice and preferring of the private complaint, the respondent No.2 has affixed a notice under Section 13(2) of the Act on the property owned by the petitioner on 06.04.2022. The petitioner preferred a representation before the Bank requesting the Bank to consider the factual aspect of the case. However, no head has been paid by the respondent No.2. Hence, this petition.

4. Per Contra, Shri Sameer Kumar Shrivastava, learned counsel appearing for the respondent No.2 vehemently opposed the prayer and raised the preliminary objection as to maintainability of the writ petition under Article 226 of the Constitution of India on the ground of availability of efficacious alternative remedy under Section 17 of the Act before the Debt Recovery Tribunal(DRT). Neither any relief has been claimed against the State of Madhya Pradesh nor there are any pleadings against the respondent No.1/Sate, therefore, it is clear that just in order to file the writ petition, the Government has been made a party. The respondent No.2 is not State within the meaning of Article 12 of the Constitution of India. The other two respondents are also not State within the meaning of Article 12 of the Constitution of India. The respondent No.2 is purely a private Bank which does not fall within the meaning of Article 12 of the Constitution of India. The disputed question of facts are involved. Therefore, the writ petition is not maintainable and deserves to be dismissed on this count alone.

5. Heard learned counsel for the parties and perused the record.

6. Learned counsel for the respondent No.2 relied on the judgment of the Apex Court in the case of Punjab National Bank & Anr. Vs. M/s. Imperial Gift House & Ors., passed in Civil Appeal No.3563/2009 wherein it is held as under :

By the impugned order, in effect and substance, the High Court has quashed notice issued by the bank under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, [for short, "the Act"]. Upon receipt of notice, respondents filed representation under Section 13(3)(A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court. In our view, the High Court was not justified in entertaining the writ pet