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2024 Supreme(Online)(MP) 11583
HIGH COURT OF MADHYA PRADESH
SUSHRUT ARVIND DHARMADHIKARI, SHRI JUSTICE DUPPALA VENKATA RAMANA, JJ
Vishal Maheshwari – Appellant
Versus
The State Of Madhya Pradesh – Respondent
WP 19972/2024
Pankaj Soni,Advocate General
Writ petitions under Article 226 cannot be entertained when an efficacious statutory remedy is available, emphasizing judicial restraint in commercial matters.
Headnote:(A) Constitution of India - Article 226 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 14 and Section 17 - Writ petition challenging possession order issued by Additional District Magistrate - Petitioners availed housing loan, declared NPA, and sought relief despite pending application before Debt Recovery Tribunal - Court reiterates that writ petitions cannot be entertained when an efficacious statutory remedy is available - Petition dismissed. (Paras 1, 2, 5, 8, 9)
(B) Alternative Remedy - Judicial Prudence - The court emphasized that when a statutory forum exists for grievance redressal, the High Court should refrain from exercising jurisdiction under Article 226, except in well-defined exceptions. (Paras 5, 8)
Facts of the case:
The petitioners sought to challenge an order for possession of their property after their housing loan account was declared as NPA. They had already filed a Securitisation Application under the SARFAESI Act, which was pending before the Debt Recovery Tribunal.
Findings of Court:
The court found that the petitioners had an alternative remedy available and thus dismissed the writ petition.
Issues: The main issue was whether the High Court should entertain a writ petition when an alternative statutory remedy is available.
Ratio Decidendi: The court ruled that the existence of an alternative statutory remedy precludes the exercise of jurisdiction under Article 226, emphasizing the need for judicial restraint in such matters.
Result: Petition dismissed.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari This writ petition under Article 226 of the Constitution of India has been filed by the petitioners being aggrieved by the order dated 01.07.2024 passed by the Additional District Magistrate, District Rajgarh in Case No. 0641/B-121/2024-25 whereby direction has been issued for taking over the possession of the subject property belonging to the petitioners.
2. Brief facts of the case are that petitioners approached respondent No.3/Bank for availing housing loan of Rs. 1,15,00,000/- by way of equitable mortgage of property bearing Plot No. 30, situated at Ward No. 5, Village Kurawar and Plot No. 825, Ward No. 05, Pargana Block, Tehsil – Narsingarh, District Rajgarh (MP). The petitioners serviced the interest to the respondent/bank. After sometime, due to financial distress, the account of the petitioners was declared as Non Performing Asset (NPA) account. Respondent No.3/bank invoked the actions under the realm of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [referred to as 'SARFAESI Act' hereinafter]. Subsequently, respondent No.3/Bank filed an application under Section 14 of the SARFAESI Act and the ADM, Rajgarh/respondent No.1 passed the impugned order dated 01.07.2024 to take physical possession of the subject property. The Naib Tehsildar/respondent No.2 proceeded for delivery of physical possession of the subject property to the respondent No.3/Bank. The said action of the respondents have been challenged by the petitioners before the Learned Debt Recovery Tribunal, Jabalpur by filing Securitisation Application No.193/2022 under Section 17(1) of the SARFAESI Act. However, the said application has not been finally decided yet. Hence, the instant petition has been filed.
3. Learned counsel for the petitioners submits that S.A.No. 193/2022 under Section 17 of the SARFAESI Act is pending before the DRT since last two years. He further submits that inspite of availing remedy under SARFAESI Act and approaching DRT, petitioner is left remedyless. Hence, it is prayed that the petition may be allowed by setting aside the order impugned.
4. Heard, learned counsel for the petitioner and perused the record.
5. In series of cases, this Court is of the consistent view that the writ petitions cannot be entertained when there is an efficacious statutory remedy of appeal available to petitioner. The Apex Court in case of M/s South Indian Bank Ltd. & Ors. vs. Naveen Mathew Philip & Anr. Etc. Etc., 2023 SCC Online SC 435 has reiterated the settled position of law on the interference of the High Court invoking Article 226 of the Constitution of India in commercial matters when an effective and efficacious alternative forum has been constituted through the statute. The Apex Court even went on to say that we are also constrained to take judicial notice of the fact that certain High Courts continue to interfere in such matters, leading to a regular supply of cases before this Court. One such High Court is that of Punjab & Haryana.
6. In paragraph 14 of the judgment in case of South Indian Bank Ltd. & Ors. (supra), the Apex Court has held as under :
''14. A writ of certiorari is to be issued over a decision when the Court finds that the process does not conform to the law or statute. In other words, courts are not expected to substitute themselves with the decision-making authority while finding fault with the process along with the reasons assigned. Such a writ is not expected to be issued to remedy all violations. When a Tribunal is constituted, it is expected to go into the issues of fact and law, including a statutory violation. A question as to whether such a violation would be over a mandatory prescription as against a discretionary one is primarily within the domain of the Tribunal. So also, the issue governing waiver, acquiescence, and estoppel.....
15. .......
16. Approaching the High Court for the consideration of an offer by the borrower is
