Shri. Parasram Tulshiram Burade vs Gruha Finance Limited Thr. ...
2016 Latest Caselaw 2825 Bom

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT NAGPUR, NAGPUR.




                                                                                     
                                                                ...

WRIT PETITION NO.1983/2016 Shri Parasram Tulshiram Burade

Aged about 64 years, occu: Retired R/o At Po :Pimpalgaon/Sadak, Tah. Lakhani Dist. Bhandara. ..PETITIONER

v e r s u s

1) Gruha Finance Limited, a Company

duly incorporated under the provisions of the Companies Act, having its registered office at Gruha Netaji Marg, Mithakhali six road

Ellisbridge, Ahmedabad-380 006 Through its Authorized Officer.

2) Gruha Finance Limited, Acting through its Branch Manager,

having Branch Office at Parmar Complex Behind Market,Railtoli Gondia,

Dist. Gondia.

3) The District Magistrate/Collector Bhandara.

4) The Executive Magistrate/Tahsildar Lakhni, Tah.Lakhni, Dist. Bhandara. .. ...RESPONDENTS

...........................................................................................................................

Mr. N.B.Kalwaghe, Advocate for the petitioner

Mr. S.S.Sanyal, Advocate for the Respondent Nos. 1 and 2 ............................................................................................................................

                                                         CORAM:    SMT. VASANTI A. NAIK   &
                                                                        MRS . SWAPNA  JOSHI, JJ
                                                                                               . 
                                                         DATED :        14  June,  2016
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ORAL JUDGMENT: (PER SMT.VASANTI A. NAIK, J.)

Rule. Rule made returnable forthwith. The petition is heard

finally at the stage of admission, with the consent of the learned counsel

for the parties.

By this Writ Petition, the petitioner challenges the order

of the respondent no.3-District Magistrate, Bhandara, on an

Application of the respondent no.1-Bank, under Section 14 of the

Securitization and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002.

Since the petitioner did not repay the amount advanced

by the respondent-Bank to the petitioner towards the loan, the

respondent no.1-Bank served a notice, under section 13(2) of the

Act on the petitioner and demanded a sum of Rs. 3 lakhs and odd.

Without initiating any proceedings under section 13(4) of the Act,

the respondent no.1 filed an Application under section 14 of the

Act, before the learned District Magistrate for securing the

possession of the secured assets. The District Magistrate allowed

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the Application filed by the Bank and directed the petitioner to

hand over the property to the respondent no.1-Bank. The said

order is impugned in the instant petition.

It is stated on behalf of the petitioner that the

respondent No.1-Bank could not have made an Application under

Section 14 of the Act without taking recourse to the provisions of

Section 13(4) of the same. It is stated that without taking

symbolic possession of the property under section 13(4) of the Act,

an Application could not have been made by the Bank, before the

District Magistrate under section 14 of the Act. It is stated that the

District Magistrate did not have jurisdiction to pass the impugned

order directing the petitioner to deliver the possession of the

property to the respondent no.1-Bank.

On hearing the learned counsel for the parties and on a

perusal of Sections 13 and 14 of the Act, it appears that the District

Magistrate did not have jurisdiction to pass the order under Section

14 of the Act in favour of the respondent-Bank. Admittedly, no

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proceedings have been initiated by the respondent-Bank under

section 13(4)of the Act and symbolic possession of the property

is not secured. If that be so, the respondent no.1-Bank could not

have applied under section 14 of the Act to secure the actual

possession of the property. Since the provisions of Section 13 (4)

were not complied with,the impugned order could not have been

passed, under section 14 of the Act.

Hence, for the reasons aforesaid, the Writ Petition is

allowed. The impugned order is quashed and set aside. The

respondent no.1-Bank is at liberty to take appropriate steps against

the petitioner in accordance with the law. Since the petitioner had

deposited a sum of Rs.2,50,000/- in this Court in terms of the

interim order, in the circumstances of the case, the petitioner is

permitted to withdraw the said amount.

Rule is made absolute in the aforesaid terms, with no

order as to costs.

                            JUDGE                             JUDGE
    sahare