Gujarat High Court
Rakshitaben Ankitbhai Patel vs District Magistrate on 17 January, 2025
NEUTRAL CITATION
C/SCA/668/2025 ORDER DATED: 17/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 668 of 2025
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RAKSHITABEN ANKITBHAI PATEL
Versus
DISTRICT MAGISTRATE & ORS.
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Appearance:
GAURAV D NANAVATI(8651) for the Petitioner(s) No. 1
KHYATI A CHUGH(10132) for the Petitioner(s) No. 1
MS JYOTI BHATT AGP for the Respondent(s) No. 1,2
MS NALINI S LODHA(2128) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 17/01/2025
ORAL ORDER
1. Ms. Nalini S. Lodha, learned advocate is permitted to file her Vakalatnama on behalf of the respondent No.3 Bank.
2. By the present Special Civil Application, the petitioner is praying for the following reliefs:-
"14A. The Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction or command in the nature of writ of mandamus directing the respondent authorities to supply the certified copies of the proceedings bearing Case No. 232-2019/2021 including certified copies of entire case papers and the order passed therein on 02.11.2021 before executing the Notice dated 17.12.2024 (Annexure - A);
B. The Hon'ble Court be pleased to issue a writ of mandamus directing the respondent authorities not to take action for a period of 30 days from the date of supply of the certified copies of the proceedings Page 1 of 5 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:35:01 IST 2025 NEUTRAL CITATION C/SCA/668/2025 ORDER DATED: 17/01/2025 undefined bearing Case No. 232-2019/2021 and the order passed thereon dated 02.11.2021 to the petitioner herein.
C. Pending admission and final hearing of the present petition, the Hon'ble Court be pleased to stay the implementation and execution of notice dated 17.12.2024 issued in further of order passed in the proceedings bearing Case No. 232-2019/2021 dated 02.11.2021. (Annexure - A);
D. Ex-parte ad interim relief in terms of paragraph (C) above be granted;"
3. It is submitted by the learned advocate for the petitioner that the petitioner was never served with any notice or proceedings in respect of the provisions under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 ["Act, 2002" for short]. She submits that thereafter the respondent No.1 has passed an order dated 02.11.2021 under Section 14 of the Act, 2002. She submits that thereafter, the respondent Nos.1 and 2 have issued a notice dated 17.12.2024 for taking over the possession of the residential premises of the petitioner where the petitioner's entire family of 10 persons are residing. She submits that in absence of any receipt of notice under the Act, 2002 as well as copy of any of the proceedings being served on the petitioner, the petitioner is not in a position to challenge the proceedings before appropriate Tribunal. She, therefore, submits that the respondent authorities may be directed to supply and serve copy of the proceedings being Case No.232-2019/2021 as well as certified copy of the entire case papers and the orders passed therein. She further submits that the petitioner may also be Page 2 of 5 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:35:01 IST 2025 NEUTRAL CITATION C/SCA/668/2025 ORDER DATED: 17/01/2025 undefined granted time of 30 days to initiate appropriate proceedings after receipt of the certified copy from the respondent Nos.1 and 2. She submits that pending the present writ petition, the implementation and execution of the notice dated 17.12.2024 be stayed.
4. Ms. Nalini Lodha, learned advocate appearing for the respondent No.3 Bank submits that the petitioner was served with the demand notice dated 29.6.2018 under Section 13(2) of the Act, 2002. She submits that the said notice has been personally received by the petitioner and duly acknowledged by her in person by affixing her signature on the same. She has produced a copy of the said demand notice with due acknowledgment of the petitioner. The same is taken on record.
She further submits that the properties which are proposed to be taken possession of are not the properties where the petitioner is residing. She submits that the petitioner's address as given in the writ petition as well as in various communications issued to the petitioner shows that she resides in a separate premises. She submits that the outstanding dues against the petitioner are around Rs.67 Lakhs and that the petitioner has not paid any installment towards the said amount since 2018. She submits that the present writ petition has been filed to delay the process of taking over possession of the subject premises. She further submits that in para '10' of the writ petition, the petitioner has stated that "the petitioner does not intend to challenge the order dated 02.11.2021 passed under Section 14 of the SARFAESI Act". She, therefore, submits that the present writ petition be dismissed.
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5. Ms. Jyoti Bhatt, learned AGP appearing for the respondent Nos.1 and 2 submits on instructions from Mr. K.S.Bhoi, Extra Chitnis to Collector, Vadodara, who is present in the Court and duly identified by her that the certified copy of the order dated 02.11.2021 passed under the Act, 2002 shall be provided to the petitioner within 15 days from today. She submits that the delay has occurred in providing the certified copy of the order to the petitioner is due to the reason that the office of the respondent Nos.1 and 2 has since shifted to new premises.
6. Heard learned advocates for the parties and perused the documents on record.
7. It is not in dispute that the petitioner has availed home loan from the respondent No.3 Bank to the tune of Rs.45 Lakhs. Further, copy of the demand notice as placed on record by the learned advocate for the petitioner dated 29.6.2018 states that the petitioner's account was declared as Non Performing Asset w.e.f. 31.5.2018. There is nothing on record to show that the petitioner has repaid the amount of loan after receiving the demand notice. Further, the proceedings under Section 14 of the Act, 2002 have been undertaken in the year 2021 and the order dated 02.11.2021 has been passed under Section 14 of the Act, 2002. Learned counsel for the respondent Bank submitted that the copy of the notice for taking over possession has been affixed on the subject premises of which the possession is proposed to be taken. Further, the petitioner has produced copy of the notice of the Mamlatdar date 17.12.2024 on record whereby the possession of subject property is proposed to be taken on 18.01.2025. Therefore, the petitioner was very well aware and Page 4 of 5 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:35:01 IST 2025 NEUTRAL CITATION C/SCA/668/2025 ORDER DATED: 17/01/2025 undefined could have initiated appropriate proceedings before the Debts Recovery Tribunal.
8. In view of the judgment in PHR Invent Educational Society v. UCO Bank & Ors. - (2024) 6 SCC 579 as well as the averments made in para '10' of the writ petition, this Court is not inclined to entertain the present writ petition. The petitioner has efficacious remedy to challenge the proceedings before the learned Debts Recovery Tribunal. The observations made hereinabove shall not come in the way of the petitioner if any proceedings are initiated by the petitioner under the Act, 2002. The petitioner is at liberty to raise all the contentions as are available to her in case the petitioner proposes to file appropriate proceedings.
9. It is made clear that this Court has not gone in the merits of the case nor any opinion is expressed thereon.
With the aforesaid directions, the present Special Civil Application stands disposed of.
Direct Service is permitted.
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 5 of 5 Uploaded by KAUSHIK D. CHAUHAN(HC00197) on Sat Jan 18 2025 Downloaded on : Mon Jan 20 21:35:01 IST 2025