Bombay High Court
Shivam Tandon And 2 Ors vs The Bharat Co-Op. Bank (Mumbai) ... on 21 June, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1612 OF 2017
1. Shivam Tandon
Adult India, carrying on business in
the firm name and style of M/s.
Gauri Enterprises, as Sole Proprietor,
thereof at Unit No.3, Kherani Estate,
Opp. National Weight Bridge,
Kherani Road, Sakinaka, Andheri(E),
Mumbai - 400 072.
2. Intelligent Experts Multitrading Pvt. Ltd.
A Company incorporated under the
Companies Act, 1956, having office at
Unit No.3, Kherani Estate, Opp. National
Weight Bridge, Kherani Road, Sakinaka,
Andheri(E), Mumbai 400 072.
3. Ashish Tandon,
Adult Indian, having address at Unit
No.3, Kherani Estate, Opp. National
Weight Bridge, Kherani Road,
Sakinaka, Andheri (E), Mumbai - 72. ... Petitioners
Vs.
1. The Bharat Co-Operative Bank Mumbai
Limited,
A co-operative Bank registered under the
Multi State Co-Operative Societies Act,
2002, having Central Office at Marutagiri,
Plot No. 13/9A, Sonawala Road,
Goregaon (E), Mumbai - 400 063.
2. Authorised Officer, The Bharat
Co-Operative Bank Mumbai
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Limited,
having office at Marutagiri, Plot
No. 13'9A, Sonawala Road,
Goregaon (East), Mumbai 400 063. ... Respondents
Mr Prathamesh Kamat, with Mr. T.N. Tripathi, and Ms. Sapna Rachure,
i/b. M/s. T.N. Tripathi & Co. for the Petitioners.
Mr. Prashant Naik, with Mr. S.R. Waghmare, Respondent No.1.
CORAM : B.R. GAVAI AND
RIYAZ I. CHAGLA, JJ.
DATE : 21 JUNE 2017.
J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. The Petitioners by the present Petition are challenging two
orders, one order dated 30th May 2017 passed by the Debt Recovery
Tribunal - I (" DRT - I ") and the second order dated 12th June 2017
passed by the Debt Recovery Appellate Tribunal, Mumbai (" DRAT ") .
2. The Petitioners had availed of certain credit facilities from
the Respondent No.1 and for which they had provided two properties
("subject properties") as and by way of security to the Respondent
No.1.
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3. The Petitioners have claimed that they were unaware of
measures taken by Respondent No.1 under Section 13(2) and Section
13(4) of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 hereinafter referred as
"SARFAESI Act". The Petitioners claim that they had neither received
the demand notice nor the possession notice of the subject properties
from the Respondent. The Petitioners claim that the Respondents had
issued sale notice dated 7th June 2016 of auction for both subject
properties on separate reserve price of Rs.3,89,15,000/- for Office No.
1 and Rs.4,54,60,000/- for office Unit No. B-001 with two car parking
spaces in a building known as 351 "Icon" at City Survey No. 351,
village : Gundavali, Taluka: Andheri, K-East Municipal Ward, Andheri
(East), Mumbai 69. The subject properties had been purchased by the
Petitioner No.1 and Petitioner No.3 respectively from one Kanakia
Spaces Private Limited. The Petitioners claim that Respondents have
issued sale notice dated 28th April 2017 for the said properties on
shockingly low reserve price of Rs.375 lakhs. The Petitioners had filed
the securitization application on 25th May 2017 being Securitization
Application No. 209 of 2017 challenging the sale notice dated 28th
April 2017 and all consequential action pursuant thereto in respect of
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the subject properties. The Petitioners had moved interim application
No. 806 of 2017 in the said securitization application for interim
relief. The DRT -I by the impugned order dated 30th May 2017 had
given an opportunity to the Petitioners to redeem their properties
within two weeks and that the Respondents were directed to not
declare the bids for two weeks and the Petitioners were directed to
bring suitable buyers above the reserve price fixed by the Respondents
in which event they shall conduct inter se bidding. The DRT-I had
further directed that upon the Petitioners failing to do so, the
Respondent No.1 bank could go ahead with the auction.
4. The Counsel for Respondent No.1 has drawn the Courts
attention to the material fact that the subject properties were put up
for auction previously for six times and the present scheduled auction
was the seventh auction and the reserve price was reduced from time
to time on account of not getting bidders and Respondent No.1 had
fixed the reserve price after obtaining valuation reports and complying
with the provisions of SARFESAI Act. This has been recorded in
paragraph 3 of the impugned order dated 30th May 2017.
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5. The Petitioners had preferred an Appeal from the
impugned order dated 30th May 2017 before DRAT, Mumbai
challenging the impugned order on various grounds set out in the
memo of Appeal. The Petitioners had also filed Miscellaneous
Application No. 630 of 2017 seeking waiver of deposit and
Miscellaneous Application No.617 of 2017 for interim relief in the said
Appeal. By the impugned order dated 12th June 2017, the DRAT,
Mumbai granted a further one week to the Petitioners in order to have
them own bidder to participate in the auction for getting good price
for the subject properties as requested by the Advocate appearing for
the Petitioners.
6. The counsel for Petitioners has sought to contend that the
Petitioners were aggrieved by the impugned orders as the properties
were being sold without following the provisions of the SARFAESI Act
and that the price which the auction would fetch would be much
lower than the their true value. The counsel for Petitioners has stated
that the reserve price of Rs.375 lakhs for the subject properties was
shockingly low and they have sought to refer to certain valuation in
reports to support their contention. The counsel for the Petitioners
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seeks to contend that the impugned orders have been passed by DRT-I
and DRAT, Mumbai without following principles of natural justice
and / or the provisions of SARFAESI Act.
7. Having considered these arguments, we are of the view
that the present Petition is not maintainable as there is an alternate
remedy available to the Petitioners in the DRT / DRAT. The Petitioners
have availed the alternate remedy by filing Securitization Application
and seeking interim relief therein.
8. We are of the considered view that on merits the
Petitioners cannot be said to be aggrieved by the interim orders passed
by the DRT and DRAT, Mumbai, in that they have been granted time
by both the impugned orders to redeem their properties and to bring
their own bidder to participate in the auction of the properties. It is
therefore, not open to the Petitioners to contend that the properties
are being sold at an extremely low value. It is always open to the
Petitioner to bring their own bidders and DRT / DRAT has only been
too fair in granting the Petitioners time for that purpose.
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9. We, therefore, see no merit in the Petitions and
accordingly dismiss the Petitions with no order as to costs.
(RIYAZ I. CHAGLA J.) ( B.R. GAVAI J.)
