Makarand Rajadhyaksha And Anr vs Corporation Bank And Ors
2017 Latest Caselaw 3213 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION


                          WRIT PETITION (ST) NO. 15877 OF 2017
                                                              WITH
                          WRIT PETITION (ST) NO. 15879 OF 2017


1. Mr. Makrand Rajadhyaksha. 
Adult Indian inhabitants of Mumbai,
Aged 46 yrs., having address at
'D' 505, D Wing, Ashok Towers,
Dr. S.S. Rao Road, Parel,
Mumbai - 400 012.

2. M/s. P.M. Dimensions Pvt. Ltd.
A Private Limited Company Registered
under the Companies Act, 1956, having
its registered office at B-807, Ashok
Tower, Opp. M.G. Hospital, Parel,
Mumbai - 400 012.                                                               ...         Petitioners

                Vs.
1. Corporation Bank a Body constituted
under the (Acquisition and Transfer
of undertakings Act, 1970)
Mangladevi Temple Road, Pandeshwar,
Manglore - 575 001 and having its
Branch office situated Mandvi Branch
221/223, Samuel Street, Masjid Bunder,
Mandvi, Mumbai - 400 050.

2. Vandana Rajadhyaksha

3. Madhav G. Rajadhyaksha
both Adult R/at. 
At D.505, D Wing, Ashok Towers,

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Dr. S.S. Rao Road, Parel,
Mumbai - 400 012.

4. Union of India,
Thru Ministry of Finance,
New Marine Lines, 
Mumbai                                                                           ...  Respondents

Mr.   Ram   Upadhyay,   i/b   Law   Competere   Consultus   for   the 
Petitioners in both Writ Petitions.
Vinaya Chavan, i/b Vinaya Chavan & Co for Respondent No.1 in 
both Writ Petitions.

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

DATE : 15 JUNE 2017.

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

1. The Petitioner No. 1 is the Director of the Company whereas

Petitioner No. 2 is the borrower Company. Respondent No. 1 is the

Nationalised Bank who had granted overdraft facility against property

as security. Respondent No. 2 is the spouse of Petitioner No. 1 and

Respondent No. 3 is the father of Petitioner No. 1 and they have been

joined as guarantors.

2. The Petitioners have filed the Petitions challenging two demand

letters dated 1st October 2015 and 8th October 2015 respectively

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which were issued by Respondent No.1 under Sections 13(2) of the

Securitisation and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002 (for short "SARFAESI Act") for non-

payment of debts.

3. The Petitioners seek quashing of the respective demand letters

on the ground that the action is not in accordance with law and

further to stay the action under the SARFAESI Act initiated by

Respondent No.1 till the present Petitions are heard as well as to set

aside the sale of the flats (secured properties).The Petitioners raise a

challenge to the action taken by the Respondent No.1 under the

SARFAESI Act as being without jurisdiction and contending that the

SARFAESI Act does not apply to an account which cannot be classified

as NPA and/or to a case where the amount due is less than 20% of the

principle amount and interest thereon, placing reliance upon Section

31(j) of the SARFAESI Act. The Petitioners have in the Petitions relied

on the facts contained in two prior Writ Petitions No. 2892 and 2893

of 2017 challenging an order of Debt Recovery Appellate Tribunal (for

short "DRAT") which Petitions are pending before this Hon'ble Court.

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4. The counsel for Respondent No.1 has raised an issue on the

maintainability of the Petitions. The counsel has contended that the

demand letters which have been impugned in the respective Petitions

have been responded to by the Petitioners and following which action

has been taken by Respondent No.1 bank under Section 13(4) of the

SARFAESI Act which was challenged by the Petitioners in the Debt

Recovery Tribunal (DRT) vide Securitisation Application No. 421 of

2016. The Petitioners had filed the Securitisation Application for

seeking urgent relief and also for condonation of delay in filing the

Application. The learned Presiding Officer of the DRT was pleased to

reject the application of condonation of delay vide order dated 16th

January 2017. The Petitioners have challenged the said order before

the DRAT. The Petitioners prior to filing the Appeal, had sought

necessary protection and for which the Petitioners filed Writ Petitions

Nos. 576 of 2017 and 577 of 2017 before this Court challenging the

order of the DRT dated 16th January 2017 and the possession notices

issued by the Respondent No.1 bank. Respondent No.1 had sought to

take possession of the secured properties of the Petitioners. The

counsel for Respondent No.1 has further submitted that an order has

been passed by this Court dated 17th January 2017 wherein the

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Division Bench of this Court has disposed of the Petitions by directing

the Respondent No.1 not to enforce the possession for a limited

period, with a view to facilitate the Petitioners to approach the DRAT

for re-dressal of their grievances in accordance with law. The counsel

for Respondent No.1 has submitted that the Petitioners had not

challenged the respective demand letters which have been impugned

in the present Petitions, in the prior Petitions. The Petitioners had also

been granted liberty to approach the DRAT to redress their grievances

pursuant to the action taken by the Respondent No.1 under Section

13(4) of the SARFAESI Act. The Petitioners have in fact availed of

such liberty granted by filing Appeal Nos. 44 and 45 of 2017 before

the DRAT. The counsel for Respondent No.1 has contended that the

Petitioners if at all aggrieved by the respective demand letters ought to

have redressed their grievances before the DRT/DRAT, which would be

the alternate forum available to the Petitioner under the SARFAESI

Act.

5. Having considered the arguments on the issue of maintainability

of the present Petitions, we are of the view that the Petitioners have an

alternate forum available to them viz. DRAT, which is already seized of

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the matter. The Petitioners have also failed to challenge the demand

notices in the prior Writ Petition Nos. 576 of 2017 and 577 of 2017

filed in this Court and by doing so, it is now not open for the

Petitioners to challenge the respective demand letters in the present

Petitions. We are of the considered view that the Petitioners have

belatedly challenged the demand letters issued on 1st October 2015

and 8th October 2015 respectively in the year 2017, despite the

demand letters having been acted upon by the Respondent No.1 and

the measures have been taken for possession of the secured property.

6. In view of the above, we hold that the present Petitions are not

maintainable and accordingly the Petitions are dismissed. The

Petitioners are directed to pay costs of Rs.1,00,000/- to the

Maharashtra State Legal Service Authority.

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