906-WP-8263-2017.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8263 OF 2017
Pragatee Developers
Thru one of its partners,
Mr. Naresh C. Barot, R/o. A-501, Rushi
Sanket Apartment, Mahant Road, Opp.
H.D.F.C. Bank ATM, Vile Parle (East),
Mumbai 400 057. ...Petitioner
Versus
Federal Bank Ltd.
"Wembley", Ground Floor, Off. Nehru
Road, Nr. Adarash Petrol Pump, Vile Parle
(East), Mumbai 400 057. ...Respondents
Mr. Diwakar R. Singh, Adv. for the Petitioner.
Mr. Pradeep Bhor, i/b Mr. O.A. Das, Adv. for Respondent
No.1 Federal Bank.
CORAM: B.R. GAVAI AND
RIYAZ I. CHAGLA, JJ.
DATED: 21st July 2017 J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. The Petitioner has filed the present Petition seeking a direction from this Court, directing the Petitioner to deposit Page 1 of 5 21st July 2017 ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:47:30 ::: 906-WP-8263-2017.DOC Rs.20 lakhs and for the Respondent to accept the said amount towards the settlement of its dues. The Petitioner has also sought for the quashing and setting aside of the notice dated 14th July 2017 issued by the Court Commissioner for taking possession of the secured property.
2. The first attachment notice had been issued by the Respondent bank on the order of the Chief Metropolitan Magistrate, Esplanade Mumbai. The Petitioner being aggrieved by the notice, approached the Debt Recovery Tribunal ("DRT"), Mumbai and filed an undertaking that the Petitioner would make payment of Rs.25 lakhs and settle the account within 60 days. The DRT had initially granted a stay of the proposed action of the Respondent bank in taking physical possession of the secured property. However, the Petitioner failed to deposit the said amount other than paying amount of Rs.5 lakhs and failed to settle the dues of the Respondent bank within 60 days as undertaken. The Respondent bank approached the DRT - II and preferred an application to vacate the interim stay.
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3. The DRT-II by its order dated 20th April 2017 observed that the Petitioner is neither interested in settling the matter with the Respondent bank nor allowing the Respondent bank to enforce its security interest. The DRT accordingly by order dated 20th April 2017 rejected the interim application filed by the Petitioner. The Petitioner claims to be unaware of the application of the Respondent bank and the order passed by the DRT - II. The Petitioner upon coming to know that physical attachment order has been passed, approached the DRT-II and sought to present the DD of Rs.20 lakhs before the DRT - II, but the said amount was refused to be accepted. The Petitioner filed an appeal in the DRAT against the order of DRT - II, which came to be admitted. The Petitioner once again offered to pay Respondent bank the said amount of Rs.20 lakhs but Respondent bank on 13th July 2017 stated that they had no instructions to accept the payment from the Petitioner. The Petitioner was issued a notice dated 14th July 2017 of the Court Commissioner for taking physical possession of the secured property on 26th July 2017. Since the DRAT has not listed the matter, the Petitioner has filed the present Petition. Page 3 of 5
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4. Mr. Diwakar Singh, learned Advocate for the Petitioner has submitted that the Petitioner is ready and willing to deposit the sum of Rs.20 lakhs and that the Respondent be directed to accept the same. Shri Singh has contended that the Petitioner is willing to settle the dues of the Respondent bank but Respondent bank have declined the same. Shri. Singh has submitted that the physical possession of the secured property be stayed.
5. Shri Pradeep Bhor, learned Advocate for the Respondent No.1 has submitted that the Petitioner had made the same offer before the DRT-II and which is recorded in the order dated 8th December 2016. The Petitioner in fact had undertaken to settle the entire dues of the Respondent bank within 60 days and had sought to retain possession of the secured property. Shri Bhor has submitted that this Court ought to dismiss the Petition as Petitioner is not interested in settling the dues of Respondent bank.
6. We are of the considered view that the Petitioner has failed to settle the dues of the Respondent bank despite the Page 4 of 5 21st July 2017 ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:47:30 ::: 906-WP-8263-2017.DOC Petitioner filing an Affidavit-cum-undertaking to settle the dues of Respondent bank within 60 days i.e. from 8th December 2016 in the DRT-II when the order was passed. The Petitioner had also undertaken that if he failed to do so within the said period, the Petitioner will handover peaceful possession of the secured property to the Respondent bank. We are of the considered view that the Petitioner has defaulted in settling the dues of the Respondent bank despite undertaking to do so as recorded in the order dated 8th December 2016 of the DRT-II. We are of the view that the present Petition seeking directions to deposit an amount of Rs. 20 lakhs and for the Respondent to accept the same, is without any merit as the same offer had been made before the DRT-II and the Petitioner had breached the undertaking.
7. We accordingly dismiss the Petition. There shall be no order as to costs.
(RIYAZ I. CHAGLA J.) ( B.R. GAVAI J.) Page 5 of 5 21st July 2017 ::: Uploaded on - 28/07/2017 ::: Downloaded on - 08/08/2017 00:47:30 :::