ORDER

Heard on the question of admission and interim relief.

In this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 16.08.2022 (Annexure P-1) passed by the Tehsildar and Executive Magistrate, Mhow (Respondent No.1) in Case No. 110/2022-23 has prayed for the set-aside the order dated 16.08.2022 passed by the Tehsildar.

2. The brief facts of the case are that, the Axis Bank initiated the proceedings of the SARFAESI Act against the petitioner and the Add. District Magistrate Indore has passed the order u/S 14 of the SARFAESI Act in favor of the Bank on 02.01.2018 to take the physical possession of the property and auction the said property in accordance with law.

3. That, petitioner has challenged the said order before DRT and the DRT has issued the status quo on the property of the petitioner with some conditions. The petitioner with bonafide intent have has paid installments to a tune of Rs. 1,50,000/- to the Bank. Furthermore, the petitioner due to the non- availability of funds could not comply with to the partial payment order of the DRT and therefore, the Tehsildar in the matter has initiated the recovery process on the mortgaged property on 16.08.2022 for auction. Being aggrieved by the order dated 16.08.2022 passed by the Respondent No.1, the petitioner has filed the present writ petition.

4. Learned counsel for the petitioner submitted that the Tehsildar and Executive Magistrate had issued the order dated 16.08.2022 in regard to the handing over the possession of the property to the bank. The petitioner challenged this issue before DRT and also filed the criminal proceedings before JMFC, Indore.

5. Counsel for the petitioner further contended that the Bank has to approach to the ADM to execute his order despite that the Bank has directly approached the Respondent No.1 and Respondent No.1 has issued the letter beyond his jurisdiction. Hence, the present petition may be allowed and the order passed by the respondent no.1 be quashed. 6. Per contra, learned G.A. for State submitted that as per the judgment dated 23.11.2023 passed in W.P. No. 26176 of 2023, this Hon'ble Court has held that no opportunity of hearing to the borrower has to be given by the Additional Collector while adjudicating on an application filed under Section 14 of the SARFAESI Act, 2002 as well as the petitioners have an alternative remedy to file the Securitization application under Section 17 before the DRT.

In catena of cases, it has been held that where there is an alternative efficacious remedy is present in such cases the High Court shall refrain from exercising its writ jurisdiction.

7. Heard learned counsel for the parties and perused the record. 8 . The petitioner has already ventilated his grievance by filing the Securitization application before the DRT, which is already pending for the adjudication. Therefore, this Court on this preliminary stage itself, is not inclined to interfere in ongoing adjudication proceedings before the DRT.

9. So far as the challenge to the order passed by the respondent no.1 is concerned, it is well within the provisions of Section 14 of the SARFAESI Act whereby after adhering to all the pre-conditions, respondent no.1 has passed the order directing the sub-ordinate authority to hand over the vacant possession of the property in question to the respondent no.2/Bank. Despite availability of efficacious alternative remedy of filing an application before the DRT, Jabalpur u/S 17 of the SARFAESI Act, petitioners have chosen to approach this Court under Article 226 of the Constitution of India for ventilation of their grievance.

In catena of judgments, the Apex Court has held that High Courts ought not to have exercise power under Article 226 of the Constitution of India, rather relegate the litigants to exhaust the alternative remedy available under the law first.

10. The Apex Court in the case of ICICI Bank Limited and others Vs.Umakanta Mohapatra and ot