Jayaben Shah vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
1 WP-35227-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE SANDEEP N. BHATT
nd
ON THE 2 OF SEPTEMBER, 2026
WRIT PETITION No. 35227 of 2026
JAYABEN SHAH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vibhor Khandelwal - Advocate for the petitioner.
Mrs. Pranjali Yajurvedi - Government Advocate for the
respondent/State.
ORDER
The present petition under Article 226 of the Constitution of India has
been filed praying for the following reliefs:
"7.1 That, the instant writ petition may kindly be allowed and
the impugned notice dated 12.08.2026 issued by the respondent no. 4
and all its subsequent and consequential proceeding may kindly be set
aside ;
7.2 That, the respondents may kindly be directed to not take any
coercive action against the petitioner by attaching the dwelling house
of the petitioner situated at House no. 3, Block-3, Navratan Bagh
Colony, Tehsil Juni Indore, Indore ;
7.3 That, the cost of this writ petition may also be awarded to the
petitioner and any other relief which this Hon’ble Court may consider
appropriate, in the interest of justice, equity and good conscience, may
also be granted to the petitioner."
2. Heard counsel for the petitioner.
3. Counsel for the petitioner has submitted that though the proceedings
before the competent consumer Court are concluded and appeal filed by the
bank is pending and pursuant to the execution proceedings filed by the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
2 WP-35227-2026
present petitioner in the Consumer Court bank was not appeared and

thereafter non-bailable warrant has been issued. In this background, it is
contended that without issuing any notice to the petitioner, the bank has
taken further action pursuant to the provisions of Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 (SARFAESI Act) and straightaway Section 14 order has been passed
without issuance of any notice under the relevant provisions.
4. I have considered the rival submissions made at bar.
5. Considering the provision of Section 14 of the SARFAESI Act,
2002, reads as under:
"14. Chief Metropolitan Magistrate or District Magistrate to assist
secured creditor in taking possession of secured asset.
(1)Where the possession of any secured asset is required to be taken by
the secured creditor or if any of the secured asset is required to be sold
or transferred by the secured creditor under the provisions of this Act,
the secured creditor may, for the purpose of taking possession or
control of any such secured asset, request, in writing, the Chief
Metropolitan Magistrate or the District Magistrate within whose
jurisdiction any such secured asset or other documents relating thereto
may be situated or found, to take possession thereof, and the Chief
Metropolitan Magistrate or, as the case may be, the District Magistrate
shall, on such request being made to him.
(a)take possession of such asset and documents relating thereto; and
(b)forward such asset and documents to the secured creditor.
[Provided that any application by the secured creditor shall be
accompanied by an affidavit duly affirmed by the authorised officer of
the secured creditor, declaring that-
(i)the aggregate amount of financial assistance granted and the total
claim of the Bank as on the date of filing the application;
(ii)the borrower has created security interest over various properties
and that the Bank or Financial Institution is holding a valid and
subsisting security interest over such properties and the claim of the
Bank or Financial Institution is within the limitation period;
(iii)the borrower has created security interest over various properties
giving the details of properties referred to in sub-clause (ii) above.
(iv)the borrower has committed default in repayment of the financial
assistance granted aggregating the specified amount;
(v)consequent upon such default in repayment of the fInancial
assistance the account of the borrower has been classified as a
nonperforming asset;
(vi)affirming that the period of sixty days notice as required by the
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
3 WP-35227-2026
provisions of sub-section (2) of section 13, demanding payment of the
defaulted financial assistance has been served on the borrower;
(vii)the objection or representation in reply to the notice received from
the borrower has been considered by the secured creditor and reasons
for non-acceptance of such objection or representation had been
communicated to the borrower;
(viii)the borrower has not made any repayment of the financial
assistance in spite of the above notice and the Authorised Officer is,
therefore, entitled to take possession of the secl1red assets under the
provisions of sub-section (4) of section 13 read with section 14 of the
principal Act;
(ix)that the provisions of this Act and the rules made thereunder had
been complied with:
Provided further that on receipt of the affidavit from the Authorised
Officer, the District Magistrate or the Chief Metropolitan Magistrate,
as the case may be, shall after satisfying the contents of the affidavit
pass suitable orders for the purpose of taking possession of the secured
assets [within a period of thirty days from the date of application]
[Inserted by Act No. 1 of 2013]:-Provided also that the requirement of
filing affidavit stated in the first proviso shall not apply to proceeding
pending before any District Magistrate or the Chief Metropolitan
Magistrate, as the case may be, on the date of commencement of this
Act.] [Substituted by Act No. 44 of 2016.][Provided further that if no
order is passed by the Chief Metropolitan Magistrate or District
Magistrate within the said period of thirty days for reasons beyond his
control, he may, after recording reasons in writing for the same, pass
the order within such further period but not exceeding in aggregate
sixty days.] [Inserted by Act No. 44 of 2016.]
(1A)[ The District Magistrate or the Chief Metropolitan Magistrate
may authorise any officer subordinate to him,-
(i)to take possession of such assets and documents relating thereto; and
(ii)to forward such assets and documents to the secured creditor.]
(2)For the purpose of securing compliance with the provisions of sub-
section (1), the Chief Metropolitan Magistrate or the District
Magistrate may take or cause to be taken such steps and use, or cause
to be used, such force, as may, in his opinion, be necessary.
(3)No act of the Chief Metropolitan Magistrate or the District
Magistrate [any officer authorised by the Chief Metropolitan
Magistrate or District Magistrate] [Inserted by Act No. 1 of 2013] done
in pursuance of this section shall be called in question in any Court or
before any authority,"

6. This Court has taken a consistent view, in light of various
judgments of the Supreme Court, and the SARFAESI Act is a self contained
code and in the present case, the petitioner is essentially challenging the
impugned action of the respondent/bank for initiating proceedings under the
SARFAESI Act. The remedy is always available by approaching the DRT by
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
4 WP-35227-2026
filing proceedings under Section 17 of the SARFAESI Act.

7. Section 17 of SARFAESI Act reads as under:
"17. [Application against measures to recover secured debts.]
[Substituted 'Right to appeal' by Act No. 44 of 2016.]
(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 authorised officer under this Chapter, [may make an application
alongwith such fee, as may be prescribed,] [Substituted by the
Enforcement of Security Interest and Recovery of Debts Laws
(Amendment) Act, 2004 (30 of 2004), Section 10, for "may prefer an
appeal" (w.r.e.f. 21.6.2002).] to the Debts Recovery Tribunal having
jurisdiction in the matter within forty-five days from the date on which
such measures had been taken:
[Provided that different fees may be prescribed for making the
application by the borrower and the person other than the borrower.]
[Inserted by the Enforcement of Security Interest and Recovery of
Debts Laws (Amendment) Act, 2004 (30 of 2004), Section 10 (w.r.e.f.
21.6.2002).]
[Explanation. For the removal of doubts, it is hereby declared that the
communication of the reasons to the borrower by the secured creditor
for not having accepted his representation or objection or the likely
action of the secured creditor at the stage of communication of reasons
to the borrower shall not entitle the person (including borrower) to
make an application to the Debts Recovery Tribunal under this sub-
section.] [Inserted by the Enforcement of Security Interest and
Recovery of Debts Laws (Amendment) Act, 2004 (30 of 2004),
Section 10 (w.r.e.f. 11.11.2004).]
(1A)[An application under sub-section (1) shall be filed before the
Debts Recovery Tribunal within the local limits of whose jurisdiction-
(a)the cause of action, wholly or in part, arises;
(b)where the secured asset is located; or
(c)the branch or any other office of a bank or financial institution is
maintaining an account in which debt claimed is outstanding for the
time being.]
(2) [The Debts Recovery Tribunal shall consider whether any of the
measures referred to in sub-section (4) of section 13 taken by the
secured creditor for enforcement of security are in accordance with the
provisions of this Act and the rules made thereunder.] [ Sub-sections
(2) and (3) substituted by the Enforcement of Security Interest and
Recovery of Debts Laws (Amendment) Act, 2004 (30 of 2004),
Section 10, (w.e.f. 11-11-2004)]
(3) [If, the Debts Recovery Tribunal, after examining the facts and
circumstances of the case and evidence produced by the parties, comes
to the conclusion 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 may, by
order,-
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
5 WP-35227-2026
(a)declare the recourse to any one or more measures referred to in sub-
section (4) of section 13 taken by the secured creditor as invalid; and
(b)restore the possession of secured assets or management of secured
assets to the borrower or such other aggrieved person, who has made
an application under sub-section (1), as the case may be; and
(c)pass such other direction as it may consider appropriate and
necessary in relation to any of the recourse taken by the secured
creditor under sub-section (4) of section 13.]
(4) If, the Debts Recovery Tribunal declares the recourse taken by a
secured creditor under sub-section (4) of section 13, is in accordance
with the provisions of this Act and the rules made thereunder, then,
notwithstanding anything contained in any other law for the time being
in force, the secured creditor shall be entitled to take recourse to one or
more of the measures specified under sub-section (4) of section 13 to
recover his secured debt.
(4A)[ Where-
(i)any person, in an application under sub-section (1), claims any
tenancy or leasehold rights upon the secured asset, the Debt Recovery
Tribunal, after examining the facts of the case and evidence produced
by the parties in relation to such claims shall, for the purposes of
enforcement of security interest, have the jurisdiction to examine
whether lease or tenancy,-
(a)has expired or stood determined; or
(b)is contrary to section 65A of the Transfer of Property Act, 1882; or
(c)is contrary to terms of mortgage; or
(d)is created after the issuance of notice of default and demand by the
Bank under sub-section (2) of section 13 of the Act; and
(ii)the Debt Recovery Tribunal is satisfied that tenancy right or
leasehold rights claimed in secured asset falls under the sub-clause (a)
or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then
notwithstanding anything to the contrary contained in any other law for
the time being in force, the Debt Recovery Tribunal may pass such
order as it deems fit in accordance with the provisions of this Act.]
(5)Any application made under sub-section (1) shall be dealt with by
the Debts Recovery Tribunal as expeditiously as possible and disposed
of within sixty days from the date of such application:Provided that the
Debts Recovery Tribunal may, from time to time, extend the said
period for reasons to be recorded in writing, so, however, that the total
period of pendency of the application with the Debts Recovery
Tribunal, shall not exceed four months from the date of making of such
application made under sub-section (1).
(6) If the application is not disposed of by the Debts Recovery Tribunal
within the period of four months as specified in sub-section (5), any
party to the application may make an application, in such form as may
be prescribed, to the Appellate Tribunal for directing the Debts
Recovery Tribunal for expeditious disposal of the application pending
before the Debts Recovery Tribunal and the Appellate Tribunal may,
on such application, make an order for expeditious disposal of the
pending application by the Debts Recovery Tribunal.
(7) Save as otherwise provided in this Act, the Debts Recovery
Tribunal shall, as far as may be, dispose of the application in

Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58

NEUTRAL CITATION NO. 2026:MPHC-IND:24539
6 WP-35227-2026
accordance with the provisions of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 (51 of 1993) and the rules made
thereunder."

8. Therefore, the opening of the Section itself states that any person,

including the borrower/petitioner can also avail the remedy of statutory
appeal provided under the SARFAESI Act. Therefore, petitioner has an
alternative, efficacious remedy. In view of availability of alternative
efficacious remedy the petition does not deserve to be entertained and is
liable to be dismissed. Accordingly, the petition is dismissed.
(SANDEEP N. BHATT)
JUDGE
jyoti

Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 02-09-2026
17:09:58