Jyoti Kailash Elag vs Bank Of India And Ors
2017 Latest Caselaw 5274 Bom

                                                    24-WPST-18189-2017.DOC




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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


               WRIT PETITION (ST) NO. 18189 OF 2017


 1. Shri Jyoti Kailash Elag
 Age 43, Occ. Business, R/at. B-18,
 Nandkishore Industrial Estate, Mahakali
 Caves Road, Andheri (East), Mumbai 93                       ...Petitioner

         Versus

 1. Bank of India
 Having its Branch office at Star House,
 Bandra Kurla Complex, Bandra (E),
 Mumbai 400 051. Also at Bank of India
 Assets Recovery Management Branch,
 Bank of India Blog, Ground Floor, 28, S.V.
 Road, Andheri (East), Mumbai 400 058.
 2. M/s. Chepar Plastics Pvt. Ltd.
 Through its Director,
 Shri Chetan Dhirajlal Parekh
 Age 55 yrs., Occu. Business, R/at. 201,
 Neelmani No. 2, D.P. Road, Vile Parle,
 Mumbai 400 056.
 3. The State of Maharashtra,
 High Court, Bombay.                                   ...Respondents


 Mr. Ravindra M. Pande, Adv. for the Petitioner.
 Mr. Anant B. Shende, Adv for Respondent No.1 Bank of India.

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

DATED: 31st July 2017

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

1. The Petitioner by the present Petition is challenging the

possession warrant dated 21st June 2017 issued by the

Assistant Registrar, Bandra Centre of Court pursuant to the

order dated 17th June 2014 passed by the Chief Metropolitan

Magistrate ("C.M.M.") in S.A. No. 202 of 2014. The Petitioner

has also challenged the order dated 4th July 2017 passed by

Debts Recovery Tribunal, II ("DRT-II"), which has dismissed

the Securitisation Application No. 266 of 2016 with I.A. No.

1057 of 2016 preferred by the Petitioner.

2. The Petitioner claims to be a tenant in respect of the

secured property since 1st April 2011. The Petitioner had filed

R.A.D. Suit before the Small Causes Court at Bandra for

declaration of tenancy on 2nd December 2015. Prior to the

filing of the RAD Suit, an application had been preferred by

Respondent No.1 before the CMM against Respondent No.2

and its directors for non-payment of the credit facility, which

Respondent No.1 had extended. The CMM had passed an

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order on 17th June 2014 directing the Assistant Registrar to

take possession of the secured property viz. Gala B-18 at

Nandkishore Industrial Estate, Off Mahakali Caves Road,

MIDC, Andheri (East), Mumbai 400 093 (hereinafter called

as subject property). The Petitioner had filed Securitisation

Application No. 266 of 2016 before the DRT-II in November

2016. On 21st June 2017, the Assistant Registrar, Bandra

Centre of Court of Mumbai, issued possession warrant in

respect of the subject property. The DRT-II by impugned

order dated 4th July 2017 (tendered in Court) has rejected

the interim application filed by the Petitioner for restraining

the Respondent No.1 from taking physical possession of the

subject property and has dismissed the Securitisation

Application. The DRT II has observed that the Petitioner had

in collusion with the borrower i.e. Respondent No.2 created

bogus tenancy in respect of the subject property. The

Petitioner is aggrieved by the impugned order.

3. Shri Pande, learned Advocate for the Petitioner has

contended that the Petitioner is a tenant in respect of the

subject property and the Respondent No.1 cannot evict a

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tenant under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Securities Interest Act,

2002 ("SARFAESI Act"). Shri Pande has contended that the

Petitioner has been proceeded against by issuance of

possession warrant without following the principles of natural

justice and Respondent No.1 bank has suppressed the fact

that the Petitioner is a tenant in respect of the subject

property and the Petitioner ought to have been made a party

to the Securitisation Application filed before the CMM. Shri

Pande has also contended that the impugned order of the

Presiding Officer of the DRT-II has erroneously held that

there was a bogus tenancy created by the borrower,

Respondent No.2, in collusion with the Petitioner in respect of

the subject property. Shri Pande has contended that the

subject property is required to be protected by orders passed

by this Court and that the impugned orders as well as the

possession warrant be set aside.

4. Shri Shende, learned Advocate for the Respondent

No.1 has submitted that the Petitioner had although filing

RAD suit in the Small Causes Court had not obtained a stay

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of the impugned order dated 17th June 2014 passed by the

CMM. Shri Shende has contended that the tenancy is a

bogus tenancy created in collusion between the Petitioner

and Respondent No.2. The DRT - II has justifiably observed

the bogus tenancy by placing reliance upon a similar

Securitisation Application filed by one Ashwin J. Vora, who

also claimed to be a tenant in respect of Flat No. 304, i.e.

another of the secured properties, which claim was rejected

by the DRT-II vide its order dated 3rd July 2017. The

application before the DRT-II in the present matter was

similar in the case of Ashwin J. Vora. Shri Shende has

contended that the DRT-II is justified in dismissing the interim

application seeking protection of the subject property and the

Securitisation Application filed by the Petitioner.

5. We are of the considered view that the Petitioner

having not obtained a stay of the impugned order passed by

the CMM in the RAD Suit filed in the Small Causes Court is

not entitled to any protection of the subject property. We are

of the view that, the Petitioner has an alternate remedy

available to him under the SARFAESI Act and that if the

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Petitioner is at all aggrieved by the impugned order dated 4th

July 2017 passed by the DRT-II, the appropriate remedy

would be under Section 17 of the SARFAESI Act before the

Debts Recovery Appellate Tribunal ("DRAT"). The Petitioner

has filed this Petition belatedly i.e. on 1st July 2017,

particularly when the possession warrants were issued on

21st June 2017 and possession of the subject property is to

be taken on 5th July 2017. We find no infirmity in the

impugned orders.

6. We accordingly dismiss this Petition. There shall be no

order as to costs.

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