Safia Abdul Majid Dhanani vs The Sahebrao Deshmukh ...
2017 Latest Caselaw 3438 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                       ORDINARY ORIGINAL CIVIL JURISDICTION
                            WRIT PETITION (L) NO. 1582 OF 2017

Mrs. Safia Abdul Majid Dhanani
Aged 69 yrs., Occ. Housewife,
R/at. Flat No. 501, 5th Floor, 
Hill Park, B-1, Tower Captain 
Suresh Sawant Marg,
Near Agarwal Industrial Estate,
Jogeshwari (W), Mumbai 12                                                       ...         Petitioner

                Vs.
1. The Sahebrao Deshmukh Co-Op
Bank Ltd.,
having address at 103, Trade Corner,
Salinaka Road, Sakinaka Junction,
Andheri (E).
2. Jaan Mohammed Shaikh
Aged 44 yrs., Occ. Business,
Having address at D/7, Diamond
Estate Bldg., Vidyanagari Road,
Kalina, Santacruz (East),
Mumbai 400 098.
3. Mr. Shah Sarwarali Mohd Khali
Adult, having address at Room No.304,
Wing-A, Building No.2, Lalubhai 
Compound, Mankhurd, 
Mumbai - 400 043.
4. Shaikh Mohd. Aminuddin,
having address at D/1, Navjivan
Co-Operative Hsg. Soc. Ltd., New
Mill Road, Kurla (W),
Mumbai - 400 070.                                                               ...  Respondents

Mr. Owen Menezes, with Mr. Ibrahim Merchant, for the Petitioner.
Mr. Vivek Phadke, i/b Ms. Medha Rane, for the Respondent No.1
Ms. Chhabria, i/b Ms. Vidya Kamble for Respondent No.2. 


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                                                       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 Petitioner claims to be a bonafide purchaser of Shop

No.4 on ground floor "A" Wing, Sai Baba CHSL, New Hall Road, Kurla

(W), Mumbai - 400 070 hereinafter referred to as "the shop", for

value without notice. Respondent No.1 is a lender bank who has

granted loan facilities to Respondent No.2, the borrower of such loan

facilities. Defendants Nos.3 & 4 are the guarantors of the loan

facilitates granted to Respondent No.2.

2. The Petitioner has filed this Petition challenging an order

dated 7th June 2017 passed by the Debt Recovery Appellate Tribunal

("DRAT") in the Miscellaneous Application No. 551 of 2017 filed by

the Petitioner. The Petitioner has also sought certain consequential

reliefs such as stay of auction notice dated 6th April 2017 published

by Respondent No.1 in respect of the shop and to restrain

Respondent No.1 from dealing with the shop and / or handing

over possession of the shop till such time as the DRAT decides

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the Miscellaneous Appeal preferred by the Petitioner on merits.

3. The counsel appearing for the Petitioner has contended

that the Petitioner had purchased the shop from Respondent No.2 and

had taken possession of the shop and the share certificate was

transferred in the name of the Petitioner. It is contended that the

Petitioner entered into an agreement for sale with a third party for

sale of the shop and handed over possession of the shop to the third

party. It is the case of the Petitioner that the Petitioner had

subsequent to the purchase i.e. on 4th September 2013 came to know

about the mortgage deed dated 29th September 2010 in respect of the

shop and the alleged loan facilities availed by Respondent No.2 as well

as the letter dated 31st August 2013 addressed by Respondent No.1 to

the society. The Petitioner upon learning of the same executed a Deed

of Cancellation with the third party and took back possession of the

shop.

4. The counsel for Petitioner has contended that the

Respondent No.2 has played a fraud on the Petitioner and had

procured sale proceeds for the shop from the Petitioner without

disclosing any mortgage deed which had been entered into by

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Respondent No.2 with Respondent No.1. The society was also not

aware of the same when the sale was entered into. The Petitioner has

called upon Respondent No.2 to refund the entire sale consideration

amount to the Petitioner. The Petitioner also claims to have filed a

police complaint against Respondent No.2. The counsel for the

Petitioner has also submitted that Respondent No.1 had filed an

application under Section 14 of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Security Interest Act, 2002 (for

short "SARFAESI Act"). The Petitioner had upon learning of the same

filed intervention application in the proceedings under Section 14 of

the SARFAESI Act. The intervention application was rejected by the

Chief Metropolitan Magistrate, Mumbai. The Petitioner thereafter

filed Writ Petition No. 503 of 2015 in this Court. The Writ Petition

was withdrawn on 1st October 2016 with liberty to file the

appropriate proceedings. The counsel for Petitioner has submitted that

the Respondent No.1 without prior notice to the Petitioner on 4th

March 2017 proceeded to take physical possession of the shop. The

Petitioner preferred the present Securitisation Application before the

Debt Recovery Tribunal ("DRT") challenging the impugned notice

dated 2nd September 2013 and action of the bank in taking measures

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under Section 14 of the SARFESAI Act and the Petitioner sought the

possession of the shop.

5. An order came to be passed by the DRT in an interim

application filed by the Petitioner seeking stay of the e-auction which

had been scheduled by the Respondent No.1 and which was to take

place on the date of the application preferred by the Petitioner. The

DRT has rejected the interim application on the ground that an order

had been passed by the CMM on 6th March 2017 pursuant to an

application under Section 14 preferred by the Respondent No.1. It

was noted by the DRT that the Petitioner although applying for

interim relief restraining the bank from taking further measures of

sale, the Petitioner is not entitled to the same as he had not challenged

the sale in the main Securitisation application. The DRT has held that

it has no power to order interim restoration of the property and even

otherwise the Petitioner is a subsequent purchaser of the mortgaged

property i.e. after creation of mortgage by Respondent No.2 in favour

of Respondent No.1.

5. The Petitioner filed Miscellaneous Appeal No. 29 of 2017

to challenge the order dated 6th May 2017 passed by the DRAT. As

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the Hon'ble Chairperson of the DRAT had not been available for

judicial work, the Petitioner had filed Writ Petition (L) No. 1415 of

2017 in this Court and pursuant to which an order had been passed

on 20th May 2017 by the Vacation Division Bench of this Court,

wherein limited relief had been given to the Petitioner by directing the

Respondent No.1 for a period of three weeks not to handover physical

possession of the Suit property to the prospective auction purchaser.

The Petitioner was directed to move before the DRAT within the

period of three weeks. The Petition was accordingly disposed of by

noting that this Hon'ble Court had not been dealt with the rival

contentions of the parties and same was left to be raised before the

DRAT.

6. The counsel appearing for the Respondent No.1 has

submitted that the impugned order which is challenged by the present

Petition itself records that the Petitioner is not in possession of all

original documents relating to the shop and that Respondent No.1 had

taken physical possession of the property and conducted the sale

proceedings. It further records that the Advocate for Respondent No.1

had submitted that the sale of the shop has been confirmed on 20th

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May 2017 and the bank has issued sale certificate to the auction

purchaser. The DRAT has accordingly held that there was no

justification to grant an interim order and that any steps taken by

Respondent No.1 will be subject to the final outcome of the Appeal

filed by the Petitioner.

7. The counsel for Respondent No. 1 has tendered the sale

certificate dated 20th May 2017 as well as the letter dated 15th June

2017 from the Respondent No.1 addressed to the auction purchaser

wherein it is recorded by the auction purchaser at the foot of the

letter that the auction purchaser has received physical possession of

the shop through pubic auction held on 6th May 2017 for the sum of

Rs.52 lakhs on as is where as basis.

8. Having considered the arguments, we are of the view

that there is no merit in the present Petition and that the

alternate forum in which the Petitioner has already proceeded is

the DRT and from which an Appeal has been preferred to the DRAT

which is pending hearing. Further the impugned order itself records

that any steps taken by the Respondent No.1 will be subject to the

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final outcome of the Appeal. We are of the considered view that the

present Petition is infructuous to the extent that it seeks a stay on the

auction notice and to restrain Respondent No.1 from dealing with the

shop in any manner whatsoever. This relief sought by the Petitioner

does not subsist as the shop has already been sold to the auction

purchaser pursuant to the public auction held on 6th May 2017 for the

sum of Rs.52 lakhs as is apparent from the recording in the letter

dated 15th June 2017.

9. We accordingly dismiss the Writ Petition with no order as

to costs.

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