Sanraj Stone Crushing Company vs Deputy Registrar, Co-Operative ...
2017 Latest Caselaw 4775 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION


                     WRIT PETITION (L) NO. 1875 OF 2017


1. M/s. Sanraj Stone Crushing Company
Thru its Proprietor
Shri Nagaraja S. Ayyar, having address at
Survey No. 98/3, At & Post Asangaon,
Taluka - Shahapur, Dist. Thane.                                                 ...Petitioner

           Versus

1. Deputy Registrar, Co-Operative
Societies
having its address at Bhartiya Krida
Mandir Bldg, 4th Floor, Naigaon Wadala
Road, Wadala Cross Road, Mumbai 31.
2. National Co-operative Bank Ltd.
Having address at 12-B, Vatsa Hosue, 2nd
Floor, Janamabhoomi Marg, Fort, Mumbai
- 400 001.
3. Special Recovery
attached to the National Co-operative
Bank, 12-B, Vatsa House, 2nd Floor,
Janambhoomi Marg, Fort, Mumbai 400
001.                                  ...Respondents


Mr. Sunny Shah, with Ms. Neeshta, i/b Mr. Jatin Sheth for the
     Petitioner.
Ms. Jyoti Chavan, AGP for State - Respondent No.1.
Ms. Purnima Bhatia, i/b M/s. S. Pathak & Co., for the
     Respondents Nos. 2 and 3.

                                      CORAM:                     B.R. GAVAI AND

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                                                                 RIYAZ I. CHAGLA, JJ.

                                      DATED:                     20th July 2017.
PC:-


J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. The Petitioner by the present Petition is seeking

directions from this Court, to direct Respondent No.1 to

consider the Petitioner's representation dated 13th July 2017

and in the alternative for a direction to direct Respondent No.2

to take possession of the first property viz. 1/2 portion of land

bearing survey No. 98, Hissa No.3, admeasuring 4,270

Sq.mtrs. Mouje Asangaon, Taluka Shahahpur, Dist. Thane and

not the second property Viz. Flat No.1002, 10 th Floor, Mulund

Shree Mahalaxmi CHS Ltd., MHADA, near Eastern Express

Highway, Mulund (E), Mumbai 400 081.

2. The Petitioner had availed credit facilities from

Respondent No.2. The Petitioner had mortgaged the first and

second property as securities in favour of the Respondent

No.2. The Petitioner had committed defaults in paying the

installments to Respondent No.2. Recovery proceedings were

initiated by Respondent No.2 under Section 101 of the

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Maharashtra Co-operative Societies Act, 1960, ("MCS Act").

Proceedings were also instituted by the Respondent No2

under the Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002

(SARFAESI Act) by issuing demand notice to the Petitioner

and taking steps for possession of the second property under

Section 14 of the SARFAESI Act. The Petitioner had

challenged the action taken by Respondent No.2 by filing a

Writ Petition No. 4610 of 2015 in this Court. This Court by

order dated 29th July 2015, had granted interim stay directing

the Respondent Bank not to take possession of the secured

assets and had noticed that proceedings under Section 101 of

the MCS Act had been initiated, although no final order had

been passed. This Court by another order dated 8th March

2016 in Writ Petition No. 4610 of 2015 dismissed the Petition

on the ground that there was an alternate efficacious remedy

available to the Petitioner and that remedy ought to be

exhausted by the Petitioner. The ad-interim order was

continued by the order dated 8th March 2016 for a further

period of four weeks. The Petitioner approached the DRT

under Section 17 of the SARFAESI Act vide Application No.

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272 of 2016. The learned Presiding Officer vide order dated

29th November 2016 in I.A. No.1069 of 2016 granted a stay of

the proceedings initiated by Respondent No.2 bank under the

SARFAESI Act till next date of hearing. The Presiding Officer

ordered the Petitioner to pay a sum of Rs.25 lakhs to the

Respondent No.1. The Petitioner complied with the said order

and made the payment. The Petitioner submitted before the

DRT that Respondent No.1 could take possession of the first

property instead of the second property. According to the

Petitioner, the first property would be sufficient to satisfy the

claim amount of Respondent No.2. The Petitioner had

appointed a government approved valuer and the valuation

had been done of the first and second properties. This had

been placed before the Presiding Officer of the DRT.

3. Respondent No.2 had obtained Recovery Certificate

dated 28th January 2016 from Respondent No.1 for recovery

of amount due from the Petitioner under the term loan and

over draft facility. By order dated 3rd July 2017, passed by the

Recovery Officer appointed by Respondent No.1, the

Petitioner was directed to handover peaceful and vacant

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possession of the second property on 15th July 2017. The

Petitioner claims to have received the attachment order on 7th

July 2017. The Petitioner had filed a representation dated

13th July 2017 before Respondent No.1 to consider modifying

the order and directing the Respondent No.3 to take

possession of the first property instead of the second property.

As the representation had not been responded to, the

Petitioner filed the present Petition.

4. Shri Shah learned counsel appearing for the Petitioner

has submitted that the Respondent No.1 be directed by this

Court to consider the Petitioner's representation dated 13th

July 2017. Shri Shah submitted that the first property was

more valuable than the second property and would be

sufficient to meet the claim of the Respondent No.2 bank. Shri

Shah has submitted that until the representation was

considered by Respondent No.1, the attachment order of the

Recovery Officer appointed by Respondent No.1 dated 3rd

July 2017, be stayed.

5. Smt. Purnima Bhatia learned counsel appearing for

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Respondents Nos. 2 and 3 has vehemently opposed the

present Petition. Smt. Bhatia has submitted that the claim of

Respondent No.2 bank is far in excess of the valuation of the

first property which the Petitioner was offering. Smt. Bhatia

has submitted that this offer had been made previously before

the DRT in as recorded in its order dated 29th November

2016. The Petitioner was once again making the same offer

and Respondent No.1 had also considered the offer made by

the Petitioner prior to passing of attachment order dated 13th

July 2017. Smt Bhatia has also contended that there is

litigation in respect of the second property which has been

suppressed by the Petitioner. Smt. Bhatia has submitted that

there is no merit in the Petition and the Petitioner is not

interested in settling the dues of the Respondent No.2 bank.

6. We are of the considered view that the prayers sought in

this Petition is an innocuous prayer viz. Respondent No.1 be

directed to consider the representation dated 13th July 2017

submitted by the Petitioner. We are of the view that the

Petitioner has an alternate remedy available to them and

which is required to be exhausted by the Petitioner. We are

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also of the view that the DRT in its order dated 29th November

2016 has observed that the dues of the Respondent No.2

bank as on that date was to the tune of Rs.3.50 Crores. The

value of the first property itself is much less than the dues of

Respondent No.2 bank. In any event, we are not inclined to

consider the merits of the Petition in the light of the alternate

remedy being available to the Petitioner.

7. We accordingly dismiss the Petition. There shall be no

order as to costs.

     (RIYAZ I. CHAGLA J.)                                        ( B.R. GAVAI J.)