Mahalakshmi Namkeen And Others vs State Of Madhya Pradesh And Others

Rajendra Kumar (Verma), J

Heard on I.A. No. 3633/2023, an application for urgent hearing during summer vacation.

On due consideration, the same is allowed and closed.

Also heard on the question of admission and interim relief.

This writ petition under Article 226 of the Constitution of India has been filed against the order dated 27.04.2023 passed by the respondent no.2, which was affixed on petitioner's property on 29.05.2023.

Brief facts of the case is that the Petitioner No.1 is running business from last many years. After having defaulted facilities from the Respondent No.2, the Petitioner is subjected to coercive SARFAESI Actions Notice under Section 13(2) of the Act, 2002 has been issued. The Resopndetn No.2 has withdrawn the Application filed under section 14 of the Act, 2002 before the Ld.ADM -Dewas. In spite of many latches and lacunas in respect of SARFAESI actions are floating on the surface of the said proceedings, the Ld. CJM, RMMP/1242/21 Dewas ex-parte allowed the Application vide order dated 27.04.2023 and Tehildar, Dewas has issued Eviction warrant dated 23.05.2023. The said order has been obtained by the Respondent No.2 by concealing material fact that earlier an application under the same provision of the Act, 2002 has been withdrawn by the Respondent; without any liberty to file any subsequent application. The Petitioners apprehend that in case the order passed by the Ld. CJM, Dewas Under Section 14 of the Act, 2002 dated 27.04.2023 for the execution of the order are not stayed then the Petitioners may lose the physical possession of their subject property. It is settled principle and practice of law that no litigant can be left remediless.

Learned counsel for the petitioner submits that against the impugned order, he has an alternative remedy of application u/S 17 of the SARFAESI Act to be filed before the DRT. However, the petitioner neither falls under the category of a borrower nor a guarantor. Therefore, the said remedy cannot be availed. Moreso, the DRT is not functional due to vacation period.

In support of his submissions, learned counsel for the petitioner relied upon the judgment of Apex Court in the case of Red Chilly International Sales Vs. Income Tax Officer & Another reported in 2023 Live Law (SC) 16 and submitted that the Apex Court has held that alternative remedy is not a bar and without taking into consideration several judgments of the Apex Court and without making any deeper and in depth consideration, the writ petition cannot be thrown out on the ground of alternative remedy. However, the High Courts would examine the issue in depth and if the same arises for consideration, then the plea of alternative remedy cannot be a bar. The Apex Court in number of cases has held that alternative remedy is not a bar to entertain the writ petition. He further relied upon the judgment passed by the Apex Court in the case of M/S Godrej Sara Lee Ltd. Vs. The Excise and

Taxation Officer-cum-Assessing Authority and Others reported in 2023 Live Law SC 70 to contend that purely legal question is involved and it does not involve disputed questions of fact, then the Apex Court has held that the High Courts should not dismiss the writ petition on the ground of an alternative remedy.

Learned counsel for the respondent/State opposes the prayer made by learned counsel for the petitioner.

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

We are told that DRT is not functional in Madhya Pradesh. The litigant cannot be left remedy-less. We hence deem it proper to dispose of this Writ Petition by directing the petitioner to file an appropriate application along with a prayer for interim relief before the Debt Recovery Tribunal in respect of the action initiated by respondent No.2 which is the subject matter of this petition within an period of 30 days from today. In case such application(s) is filed by the petitioners praying for interim relief, the DRT shall take up the said applications including the prayer for interim relief soon it becomes functional and take a decision on the prayer for interim relief in accordance with law expeditiously. It shall be the duty of the petitioners to communicate this order to the respondents and to the Registry of DRT within seven working days from today, failing which interim protection shall cease to operate automatically.

In the meanwhile, the respondents are restrained from taking any coercive action against the petitioner for a period of 30 days from today.

The interim protection granted today shall stand vacated automatically after expiry of 30 days.

With the aforesaid liberty, the petition is disposed of.

C.c. as per rules.