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BOMBAY HIGH COURT (DB)
R.M. Borde and A.S. Gadkari, JJ.
Mahindra Chandrasen and Anr. —Petitioners
versus
Union Bank of India and Ors. —Respondents
Writ Petition No.5252 of 2015 with Civil Application No.3188 of 2015
Writ Petition No.54 of 2015 and CAW No.2088 of 2016
Decided on 10.3.2017
Counsel for the Parties:
For the Petitioners in W.P. No.5252 of 2015:Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta, Mr. Vinod Kothari and Pinaz Merchant i/by T.N. Tripathi & Co. and M/s. Apex Law Partners
For the Respondent Nos.2 and 3 in W.P. No.54 of 2015:Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta, Mr. Vinod Kothari and Pinaz Merchant i/by T.N. Tripathi & Co. and M/s. Apex Law Partners
For the Applicants in CAW No.3188 of 2015:Mr. Mustafa Doctor, Sr. Advocate along with Mr. Rohit Gupta, Mr. Vinod Kothari and Pinaz Merchant i/by T.N. Tripathi & Co. and M/s. Apex Law Partners
For the Respondent No.2 in W.P. No.5252 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 and Ms. Pragati Sharma i/by R. Ramesh, Advocate
For the Applicant in CAW No.2088 of 2016:Mr. Vikram Chaudhari, Sr. Advocate along with Mr. Harshit Seth, Mr. Rishi Senghal, Ms. Akshata Chavan, Mrs. Shashikant Kadam, Mr. Satraj Singh Gill and Ms. Pragati Sharma i/by R. Ramesh, Advocate
For the Respondent No.1 in WP No.5252 of 2015:Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin, Advocate
For the Petitioner in WP No.54 of 2015:Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin, Advocate
For the Respondent No.1 in Civil Application No.2088 of 2016 and Civil Application No.3188 of 2015:Ms. Rajani Iyer, Sr. Advocate with Mr. Nainesh Amin, Advocate
IMPORTANT POINT
Lessee cannot be evicted from secured asset without following due process of law.
Headnote:Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Sections 13(4) and 17—Possession of secured asset—Denial of restoration of possession of suit property—DRT was having power to restore possession of secured assets for and in favour of borrower but it could not restore possession of secured assets to lessee—Petitioners are lessees in suit property—Lessees are in possession of property and they should give consent to vacate premises of suit property as and when called upon by bank—After receipt of notice under Section 13(2) of SARFAESI Act, petitioners had lodged their protest with respondent-Bank and resisted act of secured creditor of taking possession—It was incumbent and mandatory on part of respondent bank to approach concerned Magistrate under Section 14 of Act before taking physical possession of suit property—Prior to taking physical possession of suit property symbolic possession of same has not been taken by bank—Respondent bank has taken possession of suit property unceremoniously and without following due process of law—Liberty granted to petitioners to file complaint as contemplated under Section 29 of SARFAESI Act. (Paras 9, 12, 18, 19 and 20)
Result: Writ Petition Partly allowed.
A.S. Gadkari, J.—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 Recover 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 the
