Back
2017 Supreme(Bom) 309
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. BORDE, A.S. GADKARI, JJ.
Mahindra Chandrasen, son of Late Shri Chandrasen - Petitioners
Vs.
Union Bank of India – Respondents
WP NO.5252 OF 2015 WITH CIVIL APPLICATION No.3188 of 2015, CIVIL APPLICATION NO.2088 OF 2016 IN WP NO.5252 OF 2015, WP NO. 54 of 2015
Decided on : 10-03-2017
Advocate Appeared:
Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta and Mr. Vinod Kothari and Pinaz Merchant i/by T.N.Tripathi & Co. and M/s. Apex Law Partners for the Petitioners in W.P.No.5252/2015 and for Respondent Nos. 2 and 3 in W.P. No.54/2015 and for Applicants in CAW No.3188 of 2015.
Mr. Vikram Chaudhari, Sr. Advocate along with Mr. Harshit Seth, Mr.Rishi Senghal, Ms.Akshata Chavan, Mrs. Shashikant Kadam, Mr.Satraj Singh Gill, Ms. Pragati Sharma i/by R.Rmesh for Respondent No.2 inW.P.No.5252/2015 and for Applicant in CAW No.2088 of 2016.
Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin for Respondent No.1 in WP No.5252/2015 and for Petitioner in W.P. No.54/2015 and for Respondent No.1 in Civil Application No.2088/2016 and Civil Application No.3188/2015.
Important Point: After receipt of the notice under Section 13(2) of the SARFAESI Act dated 12.2.2011, the petitioners had lodged their protest with respondent No.1-Bank. It was therefore, incumbent and mandatory on the part of the respondent bank to approach the concerned Magistrate under Section 14 of the Act before taking the physical possession of the suit property.
Headnote:Writ Petition--- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 --- Section 13(2), Section 13(4), Section 14,Section 17(3) Section29----Criminal Procedure Code,1973--- Section 340---Transfer of Property Act---Section56A, Section111--- The fact that the petitioners were in possession of the suit property by way of registered lease deed. It is categorically stated that in such set of circumstances the question of handing over of possession of the suit property did not arise at all.---- After receipt of the notice under Section 13(2) of the SARFAESI Act dated 12.2.2011, the petitioners had lodged their protest with respondent No.1-Bank and resisted the act of the secured creditor of taking possession. It was therefore, incumbent and mandatory on the part of the respondent bank to approach the concerned Magistrate under Section 14 of the Act before taking the physical possession of the suit property.
Result—Petitions allowed.
A.S.Gadkari, J.:
1. The petitioners in Writ Petition No.5252 of 2015 have questioned the correctness of that part of the Judgment and Order of the Debt Recovery Appellate Tribunal dated 14.10.2014 passed in Appeal No.206 of 2012 to the extent of setting aside the order dated 7.9.2011 passed by the Debt Recovery Tribunal-III, Mumbai in Securitization Application No.107 of 2011, thereby denying the restoration of possession of the suit property and for other consequential reliefs. The applicant in Civil Application No.2088 of 2016 is respondent No.2 in W.P.No.5252 of 2015 and by the said application the applicant/respondent No.2 has prayed that, an action as contemplated under Section 340 of the Code of Civil Procedure may be initiated against the petitioners in Writ Petition No.5252 of 2015, for the offences under Section 177, 182, 193, 199 and 209 of the Indian Penal Code. Writ Petition No.54 of 2015 has been filed by the Bank, who is respondent No.1 in W.P. No.5252 of 2015,praying for an appropriate writ, order or directions to quash and set aside and to expunge that part of the impugned orders dated 7.9.2012 and 14.10.2014 passed by the Debt Recovery Tribunal-III, Mumbai and Debt Recovery Appellate Tribunal, Mumbai, respectively, holding that the petitioner bank had taken forcible possession of the secured assets and for quashing the findings and remarks made in Para Nos. 10 and 11 of the Judgment and Order dated 14.10.2014 passed by the Debt Recovery Appellate Tribunal, Mumbai.
2. Heard the learned counsel for the respective parties at length and also perused the entire record made available before us minutely and in pursuance of the directions issued by the Hon'ble Supreme Court of India dated 29.8.2016 in Special Leave to Appeal No.8484 of 2016, the petitions are taken up for final hearing.
3. For the sake of brevity, hereinafter, the property in question will be termed as “Suit property; the petitioners in Writ Petition No.5252 of 2015 will be termed as “Lessees”; the respondent No.1 in Writ Petition No.5252 of 2015 and petitioners in Writ Petition No.54 of 2015 will be termed as “Bank”; the respondent No.2 in Writ Petition No.5252 of 2015 and applicant in Civil Application No.2088 of 2016 and respondent No.4 in Writ Petition No.54 of 2015 will be termed as “Respondent No.2-Rajat Infrastructure” and the respondent Nos. 3 and 4 in Writ Petition No.5252 of 2015 and respondent Nos. 5 and 6 in Writ Petition No.54 of 2016 will be termed as “Respondent No.3 and 4 borrowers” in the following paragraphs.
4. The facts which can be enumerated from the record and are necessary to decide the present petition, can briefly be stated as under:-
a. The State of Holkar (Maharaja Shri. Holkar) granted an Inami land admeasuring 2.18 acres equivalent to 10,464 sq. yards, situated at 7, Manoramaganj, Indore, Madhya Pradesh (the suit property) in the year 1910 to Shri.Suryanarayanji Shastri Dravid. On 13.11.1920 Shri. Suryanaraynji Dravid leased out the said property to Shri. Amolakchand Ajmera. That, on 13.1.1934 Shri. Amolakchand Ajmera transferred the lease in favour of Shri. Ayodhya Prasad Bhargav. By a registered deed dated 2.9.1939 Shri. Ayodhya Prasad Bhargav transferred his lease hold interest in the suit property in favour of Shri. Swayambar Lal for the residuary period which will be expiring on 1.9.2019. After acquiring the aforesaid property Shri. Swayambar Lal constructed bunglows and houses on the suit property. There are eight tenants in the said property occupying different houses and service quarters. The bungalows situated at the suit property were in actual physical possession and use of the petitioners. That, the property has ever since been in physical possession of the family members of Shri. Syamambar Lal till they were dispossessed from the suit property as stated herein below. After the death of Shri. Swayambar Lal, the leased hold rights of the suit property devolved on Smt. Nirmaladevi and the petitioners therein.
