Madan Mohan Shrivastava V ADM Bhopal, 2021 SCC OnLine MP 3409

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2021 SCC OnLine MP 3409 : ILR 2021 MP 683 : (2021) 3 MP LJ 561 : (2021)
223 AIC 610
In the High Court of Madhya Pradesh

Writ Petition
(Jabalpur)
(BEFORE PRAKASH SHRIVASTAVA AND ANJULI PALO, JJ.)
Madan Mohan Shrivastava … Petitioner;

Versus
Additional District Magistrate (South) Bhopal and Others …
Respondents.
WP No. 5629/2021
Decided on April 1, 2021
Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest (SARFAESI) Act, (54 of 2002), Sections 13(4), 14 & 17 and Constitution — Article
226/227 — Alternate Remedy of Appeal — Maintainability of Petition — Held — Section 14
is one of the mode of taking over possession of secured asset — Action u/S 14 constitutes
an action taken after the stage of Section 13(4) thus, against such action, remedy of appeal
u/S 17 before DRT is avail able — Petition dismissed.
(Paras 5 to 7 & 17 to 20)
Cases referred:
(2011) 2 SCC 782, 2018 SCC OnLine SC 55, (2014) 1 MP LJ 396, (2019) 1 MP LJ 471,
W.P. No. 19028/2017 decided on 36.04.2018 (DB), W.P. No. 28096/2018 decided on
10.12.2018 (DB), 2011 Legal Eagle (P & H) ESR 5272, 2015 SCC OnLine MP 7053,
2015 SCC OnLine MP 611, 2016 SCC OnLine MP 7436, (2014) 6 SCC 1.
Advocates who appeared in this case:
Kapil Duggal, for the petitioner.
Arun Kumar Mishra, for the respondent No. 3.
Anuj Agrawal, for the respondent No. 6
Page: 684
The Order of the Court was delivered by

PRAKASH SHRIVASTAVA, J.:— This writ petition under Article 226/227 of the
Constitution of India has been filed by the petitioner aggrieved with the order of the
Additional Collector dated 25.01.2021 under Section 14 of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for
short ‘the Act’) directing the Tehsildar to ensure delivery of possession of the
mortgaged property to the respondent-Bank.
2. Learned counsel for the respondent No. 3/Bank has raised the preliminary
objection that against such an order the petitioner has remedy of filing an appeal
under Section 17 of the Act. He has placed reliance upon certain judgments in support
of his submission.
3. The submission of learned counsel for the petitioner is that the remedy of appeal
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is not available against the order passed under Section 14 of the Act and that in terms
of sub-section (3) of Section 14 of the Act, the order under Section 14 is final and it
cannot be challenged in any court except in the High Court under Article 226 of the
Constitution of India.
4. We have heard the learned counsel for the parties and perused the record.
5. Section 17 of the Act provides for remedy of appeal and reads as under:—
“17. Application against measures to recover secured debts —(1) Any
person (including borrower), aggrieved by any of the measures referred to in sub-
section (4) of Section 13 taken by the secured creditor or his authorized officer
under this Chapter, [may make an application along with such fee, as may be
prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter with in
forty-five days from the date on which such measure had been taken:”
A bare perusal of above provision indicates that remedy of appeal is available
against any of the measures referred to under Section 13(4). Section 13(4) reads as
under:—
“13. Enforcement of security interest.—
(1) XXX XXX XXX
(2) xxx xxx xxx
(3) xxx xxx xxx
(4) In case the borrower fails to discharge his liability in full within the period
specified in sub-section (2), the secured creditor may take recourse to one or
more of the following measures to recover his secured debt, namely:—
Page: 685
(a) take possession of the secured assets of the borrower including the right
to transfer by way of lease, assignment or sale for realising the secured
asset;
(b) take over the management of the business of the borrower including the
right to transfer by way of lease, assignment or sale for realising the
secured asset:
Provided that the right to transfer by way of lease, assignment or sale shall
be exercised only where the substantial part of the business of the borrower is
held as security for the debt:
Provided further that where the management of whole, of the business
or part of the business is severable, the secured creditor shall take over the
management of such business of the borrower which is relatable to the
security or the debt;
(c) against any person (hereafter referred to as the manager), to manage the
secured assets, the possession of which has been taken over by the secured
creditor;
(d) require at any time by notice in writing, any person who has acquired any
of the secured assets from the borrower and from whom any money is due
or may become due to the borrower, to pay the secured creditor, so much
of the money as is sufficient to pay the secured debt.”
Section 13(4) of the Act permits the secured creditor to take recourse to measures
prescribed therein to recover the secured debt. One such measure is to take
possession of the secured asset. Section 14 of the Act gives remedy to the secured
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creditor to approach the District Magistrate when possession of any secured asset is
required to be taken and it further empowers the District Magistrate to take possession
of such secured asset. Hence it is clear that action taken by the District Magistrate is
in furtherance of the provision contained under Section 13(4).
6. Under Section 17 any person aggrieved by any of the measures referred to in sub
-section (4) of Section 13 taken by the secured creditor or his authorized officer can
file appeal to DRT. Under sub-section (2) of Section 17, the Debts Recovery Tribunal
can consider whether any of the measures referred to in subsection
Page: 686
(4) of section 13 taken, by the secured creditor for enforcement of security are in
accordance with the provisions of the Act and the rules. In terms of Section 17(3), if
the Debts Recovery Tribunal finds that any of the measures referred to in sub-section
(4) of section 13, taken by the secured creditor are not in accordance with the
provisions of this Act and the rules made thereunder, and require restoration of the
management or restoration of possession, of the secured assets to the borrower or
other aggrieved person, it can pass appropriate order for restoration of management or
possession.
7. Section 17 provides for remedy before the Tribunal against any measure to
recover secured debt. Under Section 17 any aggrieved person can approach the
Tribunal against any measure referred in Section 13(4) and taken under Chapter III of
the Act. Securing possession is one of the measure provided under Section 14 of the
Act which also falls in Chapter III. Scheme of the Act makes it clear that DRT has
jurisdiction to interfere with the action taken by the secured creditor after the stage
contemplated under Section 13(4) in respect of any measure referred therein. Section
13(4)(a) provides for taking over the possession of secured asset by the secured
creditor and Section 14 is one of the mode of taking over the possession of secured
asset. Action under Section 14 of the Act constitutes an action taken after the stage of
Section 13(4), therefore, against such an action remedy of appeal under Section 17 is
available.
8. The Supreme Court considering Sections 13, 14 and 17 of the Act in the matter
of Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782 has held
that the action under Section 14 of the Act constitutes an action taken after the stage
of Section 13(4) and, therefore, same would fall within the ambit of Section 17(1) of
the Act, therefore, the Act contemplates an efficacious remedy for borrower or any
person affected by an. action taken under Section 13(4) of the Act by providing for an
appeal before the DRT. In that case, the order under Section 14 of the Act was passed
by the Chief Metropolitan Magistrate and the High Court had dismissed the petition on
the ground that alternative remedy was available under Section 17 of the Act. The
Hon'ble Supreme Court has upheld the order of the High Court by holding that:
“21. In Indian Overseas Bank v. Ashok Saw Mill4, the main question which fell
for determination was whether the DRT would have jurisdiction to consider and
adjudicate post Section 13(4) events or whether its scope in terms of Section 17 of
the Act will be confined to the stage contemplated under Section 13(4) of the Act?
On an examination of the provisions contained in Chapter III of the Act, in
particular Sections 13 and 17. this Court, held as under : (SCC pp. 375-76, paras
35-36 & 39)
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Page: 687
“35. In order to prevent misuse of such wide powers and to prevent prejudice
being caused to a borrower on account of an error on the part of the banks or
financial institutions, certain checks and balances have been introduced in
Section 17 which allow any person, including the borrower, aggrieved by any of
the measures referred to in sub-section (4) of Section 13 taken by the secured
creditor, to make an application to the DRT having jurisdiction in the matter
within 45 days from the date of such measures having taken for the reliefs
indicated in sub-section (3) thereof.
36. The intention of the legislature is, therefore, clear that while the banks
and financial institutions have been vested with stringent powers for recovery of
their dues, safeguards have also been provided for rectifying any error or
wrongful use of such powers by vesting the DRT with authority after conducting
an adjudication into the matter to declare any such action invalid and also to
restore possession even though possession may have been made over to the
transferee.
* * *
39. We are unable to agree with or accept the submissions made on behalf of
the appellants that the DRT had no jurisdiction to interfere with the action taken
by the secured creditor after the stage contemplated under Section 13(4) of the
Act. On the other hand, the law is otherwise and it contemplates that the action
taken by a secured creditor in terms of Section 13(4) is open to scrutiny and
cannot only be set aside but even the status quo ante can be restored by the
DRT.”
(Emphasis supplied by us)
22. We are in respectful agreement with the above enunciation of law on the
point. It is manifest that an action under Section 14 of the Act constitutes an action
taken after the stage of Section 13(4), and therefore, the same would fall within the
ambit of Section 17(1) of the Act. Thus, the Act itself contemplates an efficacious
remedy for the borrower or any person affected by an action under Section 13(4) of
the Act, by providing for an appeal before the DRT.”
Page: 688
9. The similar issue came up before the Supreme Court in the matter of Authorized
Officer, State Bank of Travancore v. Mathew K.C., 2018 SCC OnLine SC 55 in reference
to challenge to the proceedings under Section 13(4) of the Act and the Supreme Court
held that:
“4. The SARFAESI Act is a complete code by itself, providing for expeditious
recovery of dues arising out of loans granted by financial institutions, the remedy of
appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal,
followed by a right to appeal before the Appellate Tribunal under Section 18. The
High Court ought not to have entertained the writ petition in view of the adequate
alternate statutory remedies available to the Respondent. The interim order was
passed on the very first date, without an opportunity to the Appellant to file a reply.
Reliance was placed on United Bank of India v. Satyawati Tandon, (2010) 8 SCC
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110, and General Manager, Sri Siddeshwara Cooperative Bank Limited v. Ikbal,
(2013) 10 SCC 83. The writ petition ought to have been dismissed at the threshold
on the ground of maintainability. The Division Bench erred in declining to interfere
with the same.”
10. In the matter of Standard Chartered Bank v. V. Noble Kumar, (2014) 1 MP LJ
396, the Supreme Court has held that:
“30. The “appeal” under Section 17 is available to the borrower against any
measure taken under section 13(4). Taking possession of the secured asset is only
one of the measures that can be taken by the secured creditor. Depending upon the
nature of the secured asset and the terms and conditions of the security agreement,
measures other than taking the possession of the secured asset are possible under
section 13(4). Alienating the asset either by lease or sale etc. and appointing a
person to manage the secured asset are some of those possible measures. On the
other hand, section 14 authorises the Magistrate only to take possession of the
property and forward the asset along with the connected documents to the
borrower. Therefore, the borrower is always entitled to prefer an “appeal” under
section 17 after the possession of the secured asset is handed over to the secured
creditor. Section 13(4)(a) declares that the secured creditor may take possession of
the secured assets. It does not
Page: 689
specify whether such a possession is to be obtained directly by the secured creditor or

by resorting to the procedure under section 14. We are of the opinion that by whatever
manner the secured creditor obtains possession either through the process
contemplated under section 14 or without resorting to such a process obtaining of the
possession of a secured asset is always a measure against which a remedy under
section 17 is available.”
11. The Division Bench of this Court also in the matter of Aditya Birla Finance
Limited v. Carnet Elias Fernandes Vemalayam, (2019) 1 MP LJ 471 has held that:
“3. Though the learned Single Bench has held that there is no alternative remedy
against an order passed by the District Magistrate under Section 14 of the Act, but,
a Division Bench of this Court in W.P. No. 19028/2017, Sunil Garg v. Bank of
Baroda decided on 16-4-2018 [(2018) 3 MP LJ 615] has held that remedy of an
aggrieved person against an order passed by the District Magistrate is before the
Debts Recovery Tribunal under Section 17 of the Act. Therefore, such finding of the
learned Single Bench cannot be sustained.”
12. The Division Bench of this Court in the matter of Sunil Garg v. Bank of Baroda
in W.R. No. 19028/2017 vide order dated 16.04.2018 has considered the issue of
availability of alternative remedy against the order under Section 14 of the Act and
has held that:
“08. The invocation of jurisdiction of the District Magistrate under Section 14 of
the Act is one of the modes available to the secured creditor to take possession of
the secured assets. Therefore, when the District Magistrate under Section 14 of the
Act hands over possession to the secured creditor, it is possession as is
contemplated under sub-section (4) of Section 13 of the Act. Therefore, for an
aggrieved person against an action taken by the secured creditor either under
subsection (4) of Section 13 or under Section 14 of the Act, the remedy is by way
of an application under Section 17 of the Act before the Tribunal.
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Page: 690
09. In G.P. Ispat's case (supra), the attention of the Chhattisgarh High Court was
not drawn to the earlier judgment of the Supreme Court in Transcore's case
(supra). Therefore, we are unable to agree with the reasoning recorded given in G.P.
Ispat's case (supra). The Full Bench of Allahabad High Court in N.C.M.L. case
(supra) has examined the judgment of Supreme Court in Transcore's case (supra)
and held that the said judgment deal with the right of secured creditor to take
possession under Section 13(4) of the Act. Therefore, the same was found not
applicable to hold that an order passed by the District Magistrate to take possession
under Section 14 of the Act can be challenged by way of an application under
Section 17 of the Act. The relevant extract from the judgment in the case of
N.C.M.L. reads as under:—
“19.3. The judgment in Transcore (supra), as quoted above, needs to be read
in the light of the question that fell for consideration. The question in short was
whether taking possession contemplated under Section 13(4) comprehends the
power to take actual possession. While dealing with this question, the Supreme
Court considered the relevant Rules which prescribe the procedure for taking
over possession of secured assets. The Supreme Court did not consider the
question whether an application under Section 1.7(1) of the Act could be filed
even before the measures/possession are/is taken as contemplated under sub-
section 4 of Section 13. In other words, the Supreme Court did not consider the
question whether an application under Section 17(1) of the Act is maintainable
before the measures, such as taking possession as provided for under Section 13
(4)(a) is available. A notice under Rule 8 of the Rules, as prescribed with
Appendix IV is required to be given to the borrower who has failed to repay the
amount informing him and the public that the bank has taken possession of the
property under subsection (4) of Section 13, read with Rule 9 of the Rules.”
We are unable to agree with the Full Bench judgment of Allahabad High Court in
N.C.M.L.'s case
Page: 691
(supra), as when the secured creditor invokes jurisdiction of the District Magistrate, it
is, in fact, invoking right to take possession under Section 13(4) of the Act itself.
10. The reliance on the judgment of Supreme Court in Standard Chartered

Bank. v. V. Noble Kumar reported as (2013) 9 SCC 620 again does not advance
the argument raised by the petitioner. In Noble Kumar's case (supra), the High
Court in the order under appeal held that when the creditor faces resistance to take
possession of the secured assets only then the creditor could resort to the
procedure under Section 14 of the Act. The argument raised was that action to take
possession under Section 13(4) or Section 14 of the Act are alternate procedures.
The Supreme Court set aside the finding recorded and held as under:—
“20. In every case where the objections raised by the borrower are rejected by
the secured creditor, the secured creditor is entitled to take possession of the
secured assets. In our opinion, such action-having regard to the object and
scheme of the Act - could be taken directly by the secured creditor. However,
visualising the possibility of resistance for such action, Parliament under Section
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14 also provided for seeking the assistance of the judicial power of the State for
obtaining possession of the secured asset, in those cases where the secured
creditor seeks it.
21. Under the scheme of Section 14, a secured creditor who desires to seek
the assistance of (he State's coercive power for obtaining possession of the
secured asset is required to make a request in writing to the Chief Metropolitan
Magistrate or District Magistrate within whose jurisdiction, secured asset is
located praying that the secured asset and other documents relating thereto may
be taken possession thereof. The language of Section 14 originally enacted
purportedly obliged the Magistrate receiving a request under Section 14 to take
possession of the secured asset and documents, if any, related thereto in terms
of the request
Page: 692
received by him without any further scrutiny of the matter.
26. It is in the above-mentioned background of the legal frame of Sections 13

and 14, we are required to examine the correctness of the conclusions recorded
by the High Court. Having regard to the scheme of Sections 13 and 14 and the
object of the enactment, we do not see any warrant to record the conclusion that
it is only after making an unsuccessful attempt to take possession of the secured
asset, a secured creditor can approach the Magistrate. No doubt that a secured
creditor may initially resort to the procedure under Section 13(4) and on facing
resistance, he may still approach the Magistrate under Section 14. But it is not
mandatory for the secured creditor to make attempt to obtain possession on his
own before approaching the Magistrate under Section 14. The submission that
such a construction would deprive the borrower of a remedy under section 17 is
rooted in a misconception of the scope of Section 17.
27. The “appeal” under Section 17 is available to the borrower against any
measure taken under Section 13(4). Taking possession of the secured asset is
only one of the measures that can be taken by the secured creditor. Depend ing
upon the nature of the secured asset and the terms and conditions of the
security agreement, measures other than taking the possession of the secured
asset are possible under Section 13(4). Alienating the asset either by lease or
sale etc. and appointing a person to manage the secured asset are some of those
possible measures. On the other hand. Section 14 authorises the Magistrate only
to take possession of the properly and forward the asset along with the
connected documents to the borrower (sic the secured creditor). Therefore, the
borrower is always entitled to prefer an “appeal” under Section 17 after the
possession of the secured asset is handed over to the secured creditor. Section
13(4)(a) declares that the secured creditor may take possession
Page: 693
of the secured assets. It does not specify whether such a possession is to be obtained
directly by the secured creditor or by resorting to the procedure under Section 14. We
are of the opinion that by whatever manner the secured creditor obtains possession
either through the process contemplated under section 14 or without resorting to such
a process obtaining of the possession of a secured asset is always a measure against
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which a remedy under Section 17 is available.”
11. The finding of the Chhatisgarh High Court and Allahabad High Court that the
remedy of the borrower is after taking actual possession of the secured assets, is
based upon an observation in Para 27 of the judgment in Noble Kumar's case
(supra). But, in our view, the Supreme Court declined the right to seek remedy
under Section 17 of the Act to the borrower for the reason that the borrower stalled
the proceedings for a period of almost four years. The Court in fact held that the
borrower would have a right to prefer an appeal under Section 17 of the Act raising
objections regarding legality of the decision of the Magistrate. The relevant extract
of the judgment reads as under:—
“40. In view of our conclusion on the scope of Section 17 recorded earlier it
would normally have been open to the respondent to prefer an appeal under
Section 17 raising objections regarding legality of the decision of the Magistrate
to deprive the respondent of the possession of the secured asset. But in view of
the fact that the respondent chose to challenge the decision of the magistrate by
invoking the jurisdiction of the High Court under Article 226 of the Constitution
and in view of the fact that the respondent does not have any substantive
objection as can be discerned from the record, we make it clear that the
respondent in the instant case would not be entitled to avail the remedy under
Section 17 as the respondent stalled the proceedings for a period of almost 4
years. It is worthwhile remembering that the respondent did not even choose to
raise any objections to the demand issued under Section 13(2) of the Act.
However, we make it clear
Page: 694
that it is always open to the respondent to seek restoration of his property by

complying with sub-Section 8 of Section 13 of the Act.”
12. We may notice that the judgment in Transcore's case (supra) has been
quoted with approval in a recent judgment of Supreme Court in Civil Appeal Nos.
2928-2930 of 2018 (ITC Limited v. Blue Coast Hotels Ltd.) decided on
19.3.2018. The relevant extract from the judgment reads as under:—
“30. Moreover, this provision provides for communication of the reasons for
not accepting the representation/objection and the requirement to furnish
reasons for the same. A provision which requires reasons to be furnished must be
considered as mandatory. Such a provision is an integral part of the duty to act
fairly and reasonably and not fancifully. We are not prepared in such
circumstances to interpret the silence of the Parliament in not providing for any
consequence for noncompliance with a duty to furnish reasons. The provision
must nonetheless be treated as ‘mandatory’.
We agree with the view of this Court in this regard in Mardia Chemicals Ltd. v.
Union of India, (2004) 4 SCC 311, Transcore v. Union of India, (2008) 1 SCC 125
and Keshavlal Khemchand & Sons (P) Ltd. v. Union of India, (2015) 4 SCC 770.”
13. A Division Bench of this Court in the case of India Sem Asset
Reconstruction Co. Ltd. v. State of M.P. - Writ Appeal Nos. 489/2016 (Indore
Bench) decided on 21.12.2017 has held that there is effective remedy to approach
the Tribunal under section 17 of the Act in respect of an order passed under Section
14 of the Act. It was held that an order under Section 14 of the Act could be
challenged before the Tribunal under Section 17 of the Act. The relevant extract
from the judgment reads as under:—
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“22. On due consideration of the aforesaid and the law laid down by the Five
Judges Bench of this court in the case of Jabalpur BUS Operators Association v.
State of
Page: 695
M.P., (2003) 1 MP LJ 513, so also the fact that judgment of United Bank of India,
Jagdish Singh v. Heeralal, (2014) 1 SCC 479, were not considered while upholding the
view taken in the matter of Ambika Solvex Ltd. v. State Bank of India, 2016 SCC
OnLine MP 5772, we are more incline to follow the earlier judgment of the Hon'ble
Supreme Court where the question of maintainability of writ petition has been
considered in great detail, we find that the appellant has an effective alternative
remedy to approach the Debt Recovery Tribunal under Section 17 of the SARFAESI
Act, the writ appeal filed by the appellant has no merit and is accordingly, dismissed
with a liberty to the appellant to avail the remedy of appeal under Section 17 of the
SARFAESI Act, in accordance with law.”
13. In the matter of Sunil Garg (supra), it has been further held that:
“15. In respect of an argument that the order passed by the District Magistrate
or the Chief Metropolitan Magistrate, or any other officer authorized by them cannot
be called in question in any Court or before any authority is again not tenable. Such
provision excludes the jurisdiction of the Civil Court but not of the Tribunal, who has
been conferred the jurisdiction to entertain an application under Section 17 of the
Act. It is well settled principle of interpretation of statutes that there has to be
conjoint and harmonious construction of the various provisions of a Statute.
Keeping in view the said principle, if the provision of Sections 13(4) and 14 (3) and
Section 17 of the Act are read together, it is clear that bar under sub-section (3) of
Section 14 is not in respect of the remedy before the Tribunal in terms of Section
17 of the Act.
16. In view of the above, the impugned order passed by the Tribunal is set aside,
as it has the jurisdiction to decide an application under Section 17 of the Act.
Therefore, the Tribunal is directed to decide an application under Section 17 of the
Act on merits in accordance with law. It shall be open to the petitioner to seek an
interim order from the Tribunal itself, if so advised. It is also clarified that it shall be
open to an aggrieved person to seek exclusion of time in filing of an application
before the Tribunal in view of the time spent before this Court in writ petition where
the question of maintainability of alternative remedy was pending.”
Page: 696
Thus, in Sunil Garg (supra) it has also been settled that bar under Section 14(3)
does not affect the remedy before the Tribunal under Section 17 of the Act.
14. The another Division Bench of this Court in the matter of Shrikant Jain v.
Additional District Magistrate (North) Bhopal by order dated 10.12.2018 in W.P. No.
28096/2018 has re-examined the position and has held as under:
“8. The invocation of jurisdiction of the District Magistrate under Section 14 of
the Act is one of the modes available to the secured creditor to take possession of
the secured assets. Therefore, when the District Magistrate under Section 14 of the
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Act hands over possession to the secured creditor, it is possession as is

contemplated under sub-section (4) of Section 13 of the Act. Therefore, for an
aggrieved person against an action taken by the secured creditor either under sub-
section (4) of Section 13 or under Section 14 of the Act, the remedy is by way of an
application under Section 17 of the Act before the Tribunal.
9. The Division Bench of this court in the case of Sunil Garg v. Bank of Baroda,
W.P. No. 19028/2017, decided on 16-04-2018 examined the validity of the
order passed by the Debt Recovery Tribunal in the proceedings under Section 17 of
the SARFAESI Act, whereby the application was dismissed on the ground that the
same is not maintainable till the actual possession is taken. The Division Bench
referring the various judgments of the Apex Court held that the appeal under
section 17 of the SARFAESI Act would be maintainable against the order passed
under Section 14 of the of the SARFAESI Act.
10. In a recent judgment passed by the Supreme Court in the case of
Authorized Officer, State Bank of Travancore v. Mathew K.C., (2018) 3 SCC
85, considering a case under SARFAESI Act, held that discretionary jurisdiction
under Article 226 is not absolute but has to be exercised judiciously in given facts
of a case and in accordance with law. Normally a writ petition under Article 226
ought not to be entertained if alternative statutory remedies are available, except in
cases falling within the well-defined exceptions. Relevant para-16 is reproduced
below:
“16. The writ petition ought not 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 jurisdiction to have declined interference.”
Page: 697
11. In view of the aforesaid enunciation of law, the present petition is not
maintainable as alternative and efficacious remedy is available against the
impugned order passed under Section 14 of the SARFAESI Act”
15. The same is the view also taken by Punjab and Haryana High Court in the
matter of United Automobiles Railway Road v. Authorised Officer, Indian Overseas
Bank, Assets Recovery Department, 2011 Legal Eagle (P & H) ESR 5272.
16. Learned counsel for the petitioner has placed reliance upon the judgments of
the Single Bench of this Court in the matter of Sri. Ambika Solvex Ltd. v. State Bank
of India, dated 16th December, 2015 reported in 2015 SCC OnLine MP 7053; Smt.
Meera Gupta v. Anurudh Builders & Developers, dated 5th May, 2015, reported in 2015
SCC OnLine MP 611; and Vardhman Solvent Extraction Industries Lid. Thru. Mr.
Mahesh Paliwal v. The State of Madhya Pradesh, dated 4th November, 2016, reported in
2016 SCC OnLine MP 7436 but these are the orders passed by the learned Single
Judge, therefore, the petitioner is not entitled to the benefits of these orders in view of
the Division Bench judgment in the case of Sunil Garg (supra). Counsel for the
petitioner has also placed reliance upon the judgment of the Supreme Court in the
matter of Harshad Govardhan Sondagar v. International Assets Reconstruction
Company Limited, (2014) 6 SCC 1 wherein taking note of Section 14(3) of the Act, the
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Hon'ble Supreme Court has held that the finality has been attached to the decision
under Section 14 as it cannot be challenged before any court or any authority but that
will not exclude the jurisdiction of the High Court under Article 226/227 of the
Constitution of India. In that judgment, the Hon'ble Supreme Court has not expressed
any opinion if the jurisdiction of the Tribunal/DRT is also excluded under sub-section
(3) of Section 17 of the Act. The Division Bench of this Court in the case of Sunil Garg
(supra) has already expressed that the provision excludes the jurisdiction of the civil
court and not the Tribunal which has been conferred with the jurisdiction to entertain
the application under Section 17 of the Act.
17. Hence, it is clear that against the order passed under Section 14 of the Act,
aggrieved person has an alternative effacious (sic : efficacious) remedy available
before the Tribunal under Section 17 of the Act.
18. The record further reflects that the co-borrower/respondent No. 6 has already
approached the DRT by filing an appeal against the impugned order by invoking the
provisions of Section 17 of the Act.
19. In view of the above, we are of the opinion that since against the impugned
order, the petitioner has alternative effacious (sic : efficacious) remedy of appeal
Page: 698
before the Tribunal under Section 17 of the Act, therefore, no case for interference at
this stage is made out.
20. The writ petition is accordingly dismissed, however with liberty to the
petitioner to avail the remedy of appeal.
Petition dismissed
———
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Page 1 Thursday, October 27, 2022

In the High Court of Madhya Pradesh

Madan Mohan Shrivastava … Petitioner;

The Order of the Court was delivered by

specify whether such a possession is to be obtained directly by the secured creditor or

10. The reliance on the judgment of Supreme Court in Standard Chartered

received by him without any further scrutiny of the matter.

26. It is in the above-mentioned background of the legal frame of Sections 13

which a remedy under Section 17 is available.”

that it is always open to the respondent to seek restoration of his property by

Act hands over possession to the secured creditor, it is possession as is

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