Pragatee Developers , Through Its ... vs Federal Bank Ltd
2017 Latest Caselaw 4906 Bom

                                                            906-WP-8263-2017.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


                    WRIT PETITION NO. 8263 OF 2017


 Pragatee Developers
 Thru one of its partners,
 Mr. Naresh C. Barot, R/o. A-501, Rushi
 Sanket Apartment, Mahant Road, Opp.
 H.D.F.C. Bank ATM, Vile Parle (East),
 Mumbai 400 057.                                                  ...Petitioner

         Versus

 Federal Bank Ltd.
 "Wembley", Ground Floor, Off. Nehru
 Road, Nr. Adarash Petrol Pump, Vile Parle
 (East), Mumbai 400 057.                   ...Respondents


 Mr. Diwakar R. Singh, Adv. for the Petitioner.
 Mr. Pradeep Bhor, i/b Mr. O.A. Das, Adv. for Respondent
       No.1 Federal Bank.

                               CORAM:      B.R. GAVAI AND
                                           RIYAZ I. CHAGLA, JJ.

DATED: 21st July 2017

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

1. The Petitioner has filed the present Petition seeking a

direction from this Court, directing the Petitioner to deposit

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906-WP-8263-2017.DOC

Rs.20 lakhs and for the Respondent to accept the said

amount towards the settlement of its dues. The Petitioner

has also sought for the quashing and setting aside of the

notice dated 14th July 2017 issued by the Court

Commissioner for taking possession of the secured property.

2. The first attachment notice had been issued by the

Respondent bank on the order of the Chief Metropolitan

Magistrate, Esplanade Mumbai. The Petitioner being

aggrieved by the notice, approached the Debt Recovery

Tribunal ("DRT"), Mumbai and filed an undertaking that the

Petitioner would make payment of Rs.25 lakhs and settle the

account within 60 days. The DRT had initially granted a stay

of the proposed action of the Respondent bank in taking

physical possession of the secured property. However, the

Petitioner failed to deposit the said amount other than paying

amount of Rs.5 lakhs and failed to settle the dues of the

Respondent bank within 60 days as undertaken. The

Respondent bank approached the DRT - II and preferred an

application to vacate the interim stay.

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3. The DRT-II by its order dated 20th April 2017 observed

that the Petitioner is neither interested in settling the matter

with the Respondent bank nor allowing the Respondent bank

to enforce its security interest. The DRT accordingly by order

dated 20th April 2017 rejected the interim application filed by

the Petitioner. The Petitioner claims to be unaware of the

application of the Respondent bank and the order passed by

the DRT - II. The Petitioner upon coming to know that

physical attachment order has been passed, approached the

DRT-II and sought to present the DD of Rs.20 lakhs before

the DRT - II, but the said amount was refused to be

accepted. The Petitioner filed an appeal in the DRAT against

the order of DRT - II, which came to be admitted. The

Petitioner once again offered to pay Respondent bank the

said amount of Rs.20 lakhs but Respondent bank on 13th

July 2017 stated that they had no instructions to accept the

payment from the Petitioner. The Petitioner was issued a

notice dated 14th July 2017 of the Court Commissioner for

taking physical possession of the secured property on 26th

July 2017. Since the DRAT has not listed the matter, the

Petitioner has filed the present Petition.

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906-WP-8263-2017.DOC

4. Mr. Diwakar Singh, learned Advocate for the Petitioner

has submitted that the Petitioner is ready and willing to

deposit the sum of Rs.20 lakhs and that the Respondent be

directed to accept the same. Shri Singh has contended that

the Petitioner is willing to settle the dues of the Respondent

bank but Respondent bank have declined the same. Shri.

Singh has submitted that the physical possession of the

secured property be stayed.

5. Shri Pradeep Bhor, learned Advocate for the

Respondent No.1 has submitted that the Petitioner had made

the same offer before the DRT-II and which is recorded in the

order dated 8th December 2016. The Petitioner in fact had

undertaken to settle the entire dues of the Respondent bank

within 60 days and had sought to retain possession of the

secured property. Shri Bhor has submitted that this Court

ought to dismiss the Petition as Petitioner is not interested in

settling the dues of Respondent bank.

6. We are of the considered view that the Petitioner has

failed to settle the dues of the Respondent bank despite the

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Petitioner filing an Affidavit-cum-undertaking to settle the

dues of Respondent bank within 60 days i.e. from 8th

December 2016 in the DRT-II when the order was passed.

The Petitioner had also undertaken that if he failed to do so

within the said period, the Petitioner will handover peaceful

possession of the secured property to the Respondent bank.

We are of the considered view that the Petitioner has

defaulted in settling the dues of the Respondent bank despite

undertaking to do so as recorded in the order dated 8th

December 2016 of the DRT-II. We are of the view that the

present Petition seeking directions to deposit an amount of

Rs. 20 lakhs and for the Respondent to accept the same, is

without any merit as the same offer had been made before

the DRT-II and the Petitioner had breached the undertaking.

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

order as to costs.

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





                               21st July 2017