Bombay High Court
Sunil Jaidev Sharma vs State Of Maharashtra And 4 Ors on 21 November, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) No. 3025 OF 2016
Sunil Jaidev Sharma .... Petitioner
vs
State of Maharashtra and 4 ors. .... Respondents
Mr. Rishab Shah along with Mr. Kunal Mehta I/by Aditya Deolekar for
the petitioner.
Mr. Umashankar S. Upadhayay, AGP for respondent No.1/State.
Mr. Umesh Shetty along with Ms. Vinita Hombalkar I/by Orbit Law
Services for respondent No.2.
CORAM: ANOOP V. MOHTA AND
A. S. GADKARI, JJ.
DATE : November 21, 2016
ORAL JUDGMENT (Per Anoop V. Mohta, J.):
Heard the learned counsel appearing for the parties finally.
2 We are inclined to dispose of the present writ petition as a
remedy under the The Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002 ( for short,
SARFAESI Act) is available to challenge impugned order dated 27
September 2016 passed by the learned Chief Metropolitan Magistrate,
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Esplanade, Mumbai in Misc. Application No. 513/MISC/2016 in
Securitisation Application No. 420/SA/2013 and notice dated 24
October 2016 issued by the Court Commissioner pursuant to the said
order.
3 Admittedly, the Petitioner is the "third person" being
neither borrower nor guarantor nor mortgagor. Section 17 (3) of the
SARFAESI Act which is amended by Act No.44 of 2016 with effect
from 1.9.2016 provides as under :
"17 Application against measures to recover secured
debts - (1) Any person (including borrower), aggrieved
by any of the measures referred to in sub-section (4) of
section 13 taken by the secured creditor or his
authorised officer under this Chapter ........
(2) .....
(3) If, the Debts Recovery Tribunal, after examining
the facts and circumstances of the case and evidence
produced by the parties, comes to the conclusion that
any of the measures referred to in sub-section (4) of
section 13, taken by the secured creditor are not in
accordance with the provisions of this Act and the rules
made thereunder, and require restoration of the
management or restoration of possession, of the
secured assets to the borrower or other aggrieved
person, it may......"
(emphasis added)
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4 The term "any person" as mentioned in Section 17 which
includes any third person like the Petitioner who is aggrieved by any
measure referred in Sections 13 (4) & 14 of the SARFAESI Act,
taken by the secured creditor/financial institution. Even otherwise,
Section 14 independently cannot be invoked unless the measure is
taken under Section 13 of the SARFAESI Act. The Petitioner's
challenge, therefore, to the impugned order including the action so
initiated is required to be made by following the above amended
provisions.
5 The learned counsel appearing for Respondent No.2
concedes to this position that the Petitioner has a remedy under
Section 17(3) of the SARFAESI Act.
6 After considering the rival contentions as well as the
provisions so read and referred, in the facts and circumstances of the
case, we are permitting the Petitioner to withdraw this Petition, with
liberty to invoke the appropriate provisions within two weeks from
today. There is no point in keeping such matter pending in High
Court, as early disposal is a must to achieve the object of the
SARFAESI Act.
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7 This Court (Vacation Judge), on 11.11.2016, after
hearing the parties has granted an interim protection, "Not to be
dispossessed till 18.11.2016 if not already dispossessed.". The
statement is made by the learned counsel appearing for the Petitioner
that the residential flat at Goregaon has already been taken possession
of, by the Respondent. The other property situated at Santacruz is still
in the custody of the Petitioner. The submission, even if any, revolving
around the property of which the possession is already taken, under
which circumstances, may be considered by the Appellate Authority
in accordance with law. Therefore, the protection so granted on
11.11.2016, is extended for two weeks from today. The Tribunal to
decide the matter uninfluenced by the order passed by the Court.
8 The writ petition is accordingly disposed of as withdrawn.
9 No costs.
(A. S. GADKARI, J.) (ANOOP V. MOHTA, J.)
