Bombay High Court
Vijaya Bank Through Gen. Manager ... vs Prithvi Bricks And Mortar Pvt. ... on 21 November, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12909 OF 2016
Vijaya Bank, through Gen. Manager,
Shri Ashish Kalra .... Petitioner
vs
Prithvi Bricks and Mortar Pvt. Ltd and ors. .... Respondents
Mr. Madhur Rai I/by PRS Legal for the petitioner.
Mr. C. P. Yadav, AGP for the respondent/State.
CORAM: ANOOP V. MOHTA AND
A. S. GADKARI, JJ.
DATE : November 21, 2016
ORAL JUDGMENT (Per Anoop V. Mohta J.):
Heard finally by consent.
2 The Petitioner undertakes to file affidavit of service within
two days, as statement is made that all the contesting
parties/respondents are served. On submission, the Petitioner is
permitted to delete Respondents 6 and 7. Amendment to be carried
out forthwith.
3 We are inclined to dispose of the present writ petition as
the submission is restricted and made that Misc. Application No CC
No.70/MISC/2016 is still pending as the learned Chief Metropolitan
Magistrate, Esplanade, Mumbai, by adjourning the matter to await
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the order of the learned Small Causes Court, Mumbai as the issue is
revolving around the tenancy/eviction from the assets/premises in
question of Respondent No.1.
4 In view of the following amended provision of Section
17(4-A) of The Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 ( for short, SARFAESI
Act), with effect from 1.9.2016, which is reproduced below, the
learned Magistrate is now required to decide the issue in accordance
with law.
"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) .....
(4) .....
4-A Where -
(i) any person, in an application under sub-
section (1), claims any tenancy or leasehold rights
upon the secured asset, the Debt Recovery Tribunal,
after examining the facts of the case and evidence
produced by the parties in relation to such claims shall,
for the purposes of enforcement of security interest,
have the jurisdiction to examine whether lease or
tenancy. - ......."
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The relevant portion of Section 14 of the SARFAESI Act is as under:
"14 Chief Metropolitan Magistrate or District
Magistrate to assist secured creditor in taking
possession of secured asset. -
(1) ......
(ix) that the provisions of this Act and the rules made
thereunder had been complied with:
Provided further that on receipt of the affidavit
from the Authorised Officer, the District Magistrate or
the Chief Metropolitan Magistrate, as the case may be,
shall after satisfying the contents of the affidavit pass
suitable orders for the purpose of taking possession of
the secured assets within a period of thirty days from
the date of application:
Provided further that if no order is passed by the
Chief Metropolitan Magistrate or District Magistrate
within the said period of thirty days for reasons beyond
his control, he may, after recording reasons in writing
for the same, pass the order within such further period
but not exceeding in aggregate sixty days.)"
(emphasis added)
5 In view of this, we are inclined to dispose of the writ
petition as there is no point in keeping this petition pending. The
learned Chief Metropolitan Magistrate to decide such Application in
view of the amended provisions as early as possible in accordance
with law. Order accordingly.
6 No costs.
(A. S. GADKARI, J.) (ANOOP V. MOHTA, J.)
