Signature Not Verifiedsan v. Income Tax Officer & Another Reported In 2023 Live Law (Sc

Signature Not Verified SAN Digitally signed by DEVESH KSHRIVASTAVA 1 IN THE HIGH COURT OF MADHYA PRADESHAT INDOREBEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA) & HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGHON THE 29[th] OF MAY, 2023 WRIT PETITION No. 12170 of 2023 BETWEEN:- 1.SHREE MAHALAKSHMI NAMKEEN THROUGH ITSPROPRIETOR RAJKUMAR SHARMA PLOT NO. 3-D,INDUSTRIAL AREA UJJAIN ROAD DEWAS 455000(MADHYA PRADESH)PROPRIETOR RAJKUMAR SHARMA PLOT NO. 3-D,INDUSTRIAL AREA UJJAIN ROAD DEWAS 455000(MADHYA PRADESH) 2.SHRI RAJKUMAR SHARMA S/O SHRI PARASLALSHAR M A PLOT NO. 3-D, INDUSTRIAL AREA,UJJAIN ROAD, DEWAS AND ALSO AT- MAKAN NO.25/1, WARD NO. 36, BADA BAZAR, DEWAS(MADHYA PRADESH)SHAR M A PLOT NO. 3-D, INDUSTRIAL AREA,UJJAIN ROAD, DEWAS AND ALSO AT- MAKAN NO.25/1, WARD NO. 36, BADA BAZAR, DEWAS(MADHYA PRADESH) 3.SHRI ASHOK SHARMA S/O SHRI PARASLALSHAR M A PLOT NO. 3-D, INDUSTRIAL AREA,UJJAIN ROAD, DEWAS AND ALSO AT- MAKAN NO.25, WARD NO. 36, BADA BAZAR, DEWAS (MADHYAPRADESH)SHAR M A PLOT NO. 3-D, INDUSTRIAL AREA,UJJAIN ROAD, DEWAS AND ALSO AT- MAKAN NO.25, WARD NO. 36, BADA BAZAR, DEWAS (MADHYAPRADESH) .....PETITIONER (BY SHRI ARJUN GARG - ADVOCATE) AND 1.THE STATE OF MADHYA PRADESH THROUGHTEHSILDAR DEWAS (MADHYA PRADESH)TEHSILDAR DEWAS (MADHYA PRADESH) 2.THE AUTHORIZED OFFICER CUM ASSISTANTGENERAL MANAGER IDFC FIRST BANK LIMITEDBRANCH OFFICE :- 6TH FLOOR, BENCHMARKBUSINESS PARK, SCHEME NO. 54, VIJAY NAGAR,INDORE (MADHYA PRADESH)GENERAL MANAGER IDFC FIRST BANK LIMITEDBRANCH OFFICE :- 6TH FLOOR, BENCHMARKBUSINESS PARK, SCHEME NO. 54, VIJAY NAGAR,INDORE (MADHYA PRADESH) 3.DISTRICT INDUSTRIES CENTER THROUGH THEGENERAL MANAGER POLO GROUND, INDORE(MADHYA PRADESH) Signature Not Verified 4.TOWN INSPECTOR CUM SHO POLICE STATION,DEWAS (MADHYA PRADESH) .....RESPONDENTS (SHRI KUSHAL GOYAL - DEPUTY ADVOCATE GENERAL FOR THERESPONDENT/STATE) This petition coming on for orders this day, JUSTICE RAJENDRA KUMAR (VERMA) passed the following: ORDER Heard on I.A. No. 3633/2023, an application for urgent hearing duringsummer 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 beenfiled against the order dated 27.04.2023 passed by the respondent no.2, whichwas affixed on petitioner's property on 29.05.2023. 2. Brief facts of the case is that the Petitioner No.1 is running businessfrom last many years. After having defaulted facilities from the RespondentNo.2, the Petitioner is subjected to coercive SARFAESI Actions Notice underSection 13(2) of the Act, 2002 has been issued. The Resopndetn No.2 haswithdrawn the Application filed under section 14 of the Act, 2002 before theLd.ADM -Dewas. In spite of many latches and lacunas in respect ofSARFAESI actions are floating on the surface of the said proceedings, the Ld.CJM, RMMP/1242/21 Dewas ex-parte allowed the Application vide order dated27.04.2023 and Tehildar, Dewas has issued Eviction warrant dated 23.05.2023.The said order has been obtained by the Respondent No.2 by concealingmaterial 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 Signature Not VerifiedSAN 3 subsequent application. The Petitioners apprehend that in case the order passedby the Ld. CJM, Dewas Under Section 14 of the Act, 2002 dated 27.04.2023for the execution of the order are not stayed then the Petitioners may lose thephysical possession of their subject property. It is settled principle and practiceof law that no litigant can be left remediless. Signature Not VerifiedSAN 3 subsequent application. The Petitioners apprehend that in case the order passedby the Ld. CJM, Dewas Under Section 14 of the Act, 2002 dated 27.04.2023for the execution of the order are not stayed then the Petitioners may lose thephysical possession of their subject property. It is settled principle and practiceof law that no litigant can be left remediless. 3. Learned counsel for the petitioner submits that against the impugnedorder, he has an alternative remedy of application u/S 17 of the SARFAESI Actto be filed before the DRT. However, the petitioner neither falls under thecategory of a borrower nor a guarantor. Therefore, the said remedy cannot beavailed. Moreso, the DRT is not functional due to vacation period. 4. In support of his submissions, learned counsel for the petitioner reliedupon the judgment of Apex Court in the case of Red Chilly InternationalSales Vs. Income Tax Officer & Another reported in 2023 Live Law (SC) 16and submitted that the Apex Court has held that alternative remedy is not abar and without taking into consideration several judgments of the Apex Courtand without making any deeper and in depth consideration, the writ petitioncannot be thrown out on the ground of alternative remedy. However, the HighCourts would examine the issue in depth and if the same arises forconsideration, then the plea of alternative remedy cannot be a bar. The ApexCourt in number of cases has held that alternative remedy is not a bar toentertain the writ petition. He further relied upon the judgment passed by theApex Court in the case of M/S Godrej Sara Lee Ltd. Vs. The Excise andTaxation Officer-cum-Assessing Authority and Others reported in 2023Live Law SC 70to contend that purely legal question is involved and it doesnot involve disputed questions of fact, then the Apex Court has held that theHigh Courts should not dismiss the writ petition on the ground of an alternative Signature Not VerifiedSAN remedy. 5. Learned counsel for the respondent/State opposes the prayer made bylearned counsel for the petitioner. 6. Heard, learned counsel for the parties and perused the record. 7. We are told that DRT is not functional in Madhya Pradesh. The litigantcannot be left remedy-less. We hence deem it proper to dispose of this WritPetition by directing the petitioner to file an appropriate application along with aprayer for interim relief before the Debt Recovery Tribunal in respect of theaction initiated by respondent No.2 which is the subject matter of this petitionwithin an period of 30 days from today. In case such application(s) is filed bythe petitioners praying for interim relief, the DRT shall take up the saidapplications including the prayer for interim relief soon it becomes functionaland take a decision on the prayer for interim relief in accordance with lawexpeditiously. It shall be the duty of the petitioners to communicate this order tothe respondents and to the Registry of DRT within seven working days fromtoday, failing which interim protection shall cease to operate automatically. 8. In the meanwhile, the respondents are restrained from taking anycoercive action against the petitioner for a period of 30 days from today. 9. The interim protection granted today shall stand vacated automaticallyafter expiry of 30 days. 10. With the aforesaid liberty, the petition is disposed of. C.c. as per rules. (RAJENDRA KUMAR (VERMA))V. JUDGE (AVANINDRA KUMAR SINGH)V. JUDGE