Bombay High Court
Sanjivkumar Surajprakash ... vs State Bank Of India And Ors on 24 July, 2017
Bench: B.R. Gavai
WP-8141-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8141 of 2017
WITH
CIVIL APPLICATION NO.1683 OF 2017
Sanjivkumar Surajprakash Aggarwal ...Petitioner
Versus
State Bank of India & Ors. ...Respondents
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Mr. Sanjay Jain i/b Ms. Harshada N. Kamble, for the Petitioner.
Mr. Vyankatesh Dhond, Senior Advocate a/w Mr. R. J. Singh
and Manoj Kumar, for the Respondent No.1 S.B.I.
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CORAM : B.R. GAVAI AND
RIYAZ I. CHAGLA, JJ.
DATE : 24 July 2017
JUDGMENT : (Per Riyaz I. Chagla, J.)
1. The Petitioner by the present Petition is challenging
impugned orders dated 19th August 2016 and 16th February
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2017 passed by the learned Chief Metropolitan Magistrate,
Esplanade, Mumbai. The Petitioner is also challenging the
subsequent impugned order dated 20th June 2017 passed by the
Debts Recovery Tribunal- II, Mumbai.
2. The Petitioner claims to be a tenant in respect of the
subject flat. Respondent No.2 is a borrower from Respondent
No.1. Upon non-payment of dues, Respondent No.1 issued
demand notice dated 3rd May 2013 on Respondent No.2 calling
upon them to pay the outstanding dues. Respondent No.1 on
14th August 2014 filed Miscellaneous Application bearing
No.388/SA/2014 before the learned Chief Metropolitan
Magistrate, Mumbai under Section 14 of The Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short the 'SARFAESI' Act). The Petitioner
had filed Miscellaneous Application for intervention on 17th
October 2014 before the learned Chief Metropolitan Magistrate,
Mumbai. The learned Chief Metropolitan Magistrate, Mumbai
by an order dated 12th January 2015 rejected the Miscellaneous
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Application of the Petitioner. The learned Chief Metropolitan
Magistrate, Mumbai by an order dated 10th June 2015 allowed
the Miscellaneous Application No.388/SA/2014 under Section
14 of the 'SARFAESI' Act. The Petitioner filed Writ Petition
before this Court claiming to be a tenant and relying upon a
decree passed by the Small Causes Court at Mumbai which
according to the Petitioner entitled the Petitioner to get a
hearing before the learned Chief Metropolitan Magistrate,
Mumbai. The decree declaring the Petitioner to be a tenant was
passed on 20th August 2014. This Court by an order dated 25th
June 2015 dismissed Writ Petition No.5612 of 2015 filed by the
Petitioner and reserved the right of the Petitioner to file Appeal
under Section 17 of the 'SARFAESI' Act from the impugned
order of the learned Chief Metropolitan Magistrate, Mumbai.
The Petitioner being aggrieved by the order of this Court dated
12th June 2015 filed Special Leave Petition before the Supreme
Court of India and by an order dated 20th July 2015 the
Supreme Court of India remanded the matter back to the
learned Chief Metropolitan Magistrate, Mumbai directing him to
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conduct enquiry regarding tenancy. The learned Chief
Metropolitan Magistrate, Mumbai conducted an inquiry into the
alleged tenancy and by the detailed order dated 19th August
2016 observed that the tenancy of the Petitioner is not genuine.
The learned Chief Metropolitan Magistrate, Mumbai observed
that the Judgment and Decree of the Small Causes Court was a
collusive decree. The Petitioner thereafter filed Securitisation
Application before Debts Recovery Tribunal on 14th August
2016 challenging the impugned order of the learned Chief
Metropolitan Magistrate, Mumbai. On 16th February 2017, the
learned Chief Metropolitan Magistrate, Mumbai passed further
order under Section 14 to appoint an Advocate Commissioner to
take possession of the subject flat. The Petitioner being
aggrieved by the impugned orders of the learned Chief
Metropolitan Magistrate, Mumbai filed the present Petition. The
Petitioner also thereafter amended the Petition by challenging
the order dated 20th June 2017 passed by the Debts Recovery
Tribunal- II.
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3. Shri. Sanjay Jain, learned counsel appearing for the
Petitioner has submitted that the impugned order passed by the
learned Chief Metropolitan Magistrate, Mumbai is contrary to
the decree passed by the Small Causes Court at Mumbai, which
had decreed the declaratory suit of the Petitioner declaring him
to be tenant in respect of the subject flat. Shri. Jain submitted
that the learned Chief Metropolitan Magistrate, Mumbai has
ignored material facts such as the agreement for tenancy
entered into between the Petitioner and the Mother of
Respondent No.3. This had not been disputed by Respondent
No.3. Shri. Jain has further contended that under Section 17
(4A) of the 'SARFAESI' Act, the Debts Recovery Tribunal ought
to have decided the issue of tenancy in accordance with decree
passed by the Small Causes Court and quashed and set aside the
impugned orders of the learned Chief Metropolitan Magistrate,
Mumbai. Shri. Jain has contended that the impugned order of
the Debts Recovery Tribunal dated 20th June 2017 is erroneous
in not granting the relief claimed by the Petitioner in the
Securitisation Application and dismissing the same with a cost of
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Rs.15,000/- payable by the Petitioner to the Respondent No.1,
Bank and vacating the interim stay granted to the Petitioner.
Shri. Jain has contended that the learned Chief Metropolitan
Magistrate, Mumbai had by impugned order dated 16th
February 2017 appointed an Advocate as Court Commissioner
for taking possession of the subject flat. This order according to
Shri. Jain was illegal as the learned Chief Metropolitan
Magistrate, Mumbai Court could have appointed only a
subordinate officer and not an Advocate as a Court
Commissioner. Shri. Jain submitted that this Court stay the
impugned orders and that the possession of the Petitioner as
tenant in respect of subject flat be continued.
4. Shri. Dhond, learned senior counsel appearing for
Respondent No.1 submitted that the decree passed by the Small
Causes Court is a collusive decree and that the decree had been
passed on unchallenged testimony as well as there being no
documentary evidence in support of the tenancy. Shri. Dhond
submitted that the detailed enquiry had been conducted by the
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learned Chief Metropolitan Magistrate, Mumbai and upon which
the learned Chief Metropolitan Magistrate, Mumbai had come to
the conclusion that the tenancy created in favour of the
Petitioner was not a genuine tenancy.
5. After hearing the argument, we are of the considered view
that the learned Chief Metropolitan Magistrate, Mumbai has
passed a detailed order after considering all the documents on
record and has held the tenancy of the Petitioner to be not
genuine. This enquiry conducted by the learned Chief
Metropolitan Magistrate, Mumbai is as per the directions of the
Apex Court. We are of the considered view that the decree
passed by the Small Causes Court has been passed on
unchallenged testimony and without relying upon the
documentary evidence in support of the tenancy which
Petitioner had claimed. We are of the view that there is no
infirmity in the impugned orders passed by the learned Chief
Metropolitan Magistrate, Mumbai and the Debts Recovery
Tribunal, and they had been passed in accordance with law.
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6. We, accordingly, dismissed the Petition with costs
quantified at Rs.1 lacs payable to the Maharashtra State Legal
Services Authority.
[RIYAZ I. CHAGLA J.] [B.R. GAVAI, J.]
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