Shaikh Mohammad Taufique And ... vs Central Bank Of India And Others
2021 Latest Caselaw 18026 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                 WRIT PETITION (STAMP) NO.34882                       OF 2021

                  SHAIKH MOHAMMAD TAUFIQUE AND ANOTHER
                                  VERSUS
                     CENTRAL BANK OF INDIA AND OTHERS
                                  ...
          Mr.Aditya N. Sikchi and Mr.Vaibhav R. Patil,
          advocate for the petitioners
          Mr.P.S. Patil, Addl. GP for the respondent/State.

                                             ...
                                           CORAM :     S.G. DIGE, J.

(Vacation Court)

DATE : 24th DECEMBER, 2021 PER COURT :-

. Mr.Sikchi, learned advocate for the petitioners submits that the petitioners are challenging the order dated 23.12.2021 passed by the Debt Recovery Tribunal, Aurangabad (for short, "D.R.T.") in S.A. No.199/2021 and I.A. No.1213/2021, whereby the D.R.T. has refused to stay the proceedings initiated against the property of the petitioners. The learned advocate further submits that, the petitioners are neither borrowers, mortgagors or guarantors to the loan transaction. They have not received any notice in the said proceedings in respect of suit property. The urgency is that the respondents are taking forcible possession of the suit property of the petitioners on 27.12.2021 without following procedure and if respondents succeed in the same, then the irreversible loss will be caused to the

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petitioners. He submits that as per section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (For short, "SARFAESI Act"), there is no provision or power to restore the possession to third party. Hence, requested to stop the respondent no.1 from taking possession of the suit property.

2. The learned advocate for the petitioners further submits that the petitioners have purchased the property i.e. plot no.L-31 admeasuring 20000 Sq. Fts, M.I.D.C., Chikalthana Industrial Area, Aurangabad (for short, "suit property") in the year 2008. They were not aware about the loan transaction of respondent no.3 with respondent no.1 - Bank. When they came to know about this transaction, the petitioners have filed Civil Suit in Civil Court, which is pending. The half portion of the property is in possession of the petitioners. In 2015, the respondent no.1 - bank has shown that the possession is taken of the suit property, which is incorrect. The said possession is taken only on the paper. The petitioners are in actual possession of the suit property. The learned advocate further submits that, the section 14 of the SARFAESI Act was executed in 2015. The Sub- Divisional Officer has no power to pass the order under section 14 of the SARFAESI Act. The learned

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Advocate relied upon the judgment of Hon'ble Apex Court in the case of Harshad Govardhan Sondagar V/s International Assets Reconstruction Company Limited and others reported in (2014) 6 SCC 1, judgment of the High Court of Gujarat at Ahmedabad in Special Civil Application No.12632/2013 dated 17.09.2013 and also judgments of this Court at Principal Seat in the cases of Bank of Bahrain and Kuwait B.S.C. Vs Union of India and others in Writ Petition no.24293 of 2021, decided on 2nd December, 2021 and IIFA Retail Private Limited V/s Abhyudaya Co.op Bank Ltd. And others in Writ Petition (L) No.392/2015 decided on 25th February, 2015.

3. The learned Additional Government Pleader submits that the respondent - Bank is the real contesting party to whom the notice has not been served by the petitioners. The matter is subjudice before the D.R.T. He further submits that the petitioners are seeking relief against the order of money proceedings then the petitioners have to deposit the amount. He further submits that the possibility cannot be ruled out of collusion in between the petitioners and borrowers. Hence, the hearing of the Bank side is must. So also the petitioners have filed Civil Suit before the Civil Court.

          4.               Heard           learned        advocate            for        the





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petitioners and the learned Additional Government Pleader.

5. It is the case of the petitioners that they have purchased the suit property from respondent no.3 in the year 2008. It is significant to note that the suit property is purchased on Notarized agreement and there is no registered sale deed of suit property. Respondent No.3 has taken the loan from respondent no.1 - Bank in the year 2012. The learned advocate for the petitioners submits that he is not aware about the due loan amount against respondent no.3. The petitioners are challenging the order passed by the D.R.T. dated 23.12.2021, the copy of the said order is not produced before this Court. Hence this Court is not aware on what reasons, the application of the petitioners is rejected by the learned D.R.T. The petitioners are claiming right over the suit property on the basis of Notarized Agreement dated 10.11.2008, whereas the respondent no.3 has mortgaged the suit property with respondent no.1 bank in year 2012. The petitioners have not got executed registered sale deed with respondent no.3 in respect of suit property. The petitioners are also challenging the order dated 03.03.2015 passed under section 14 of the SARFAESI Act. There is six years delay for challenging this order.

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6. Considering the fact that, no order of D.R.T. is produced before this Court and there is six years delay in challenging the order dated 03.03.2015, I am not inclined to grant interim relief as prayed by the petitioners to stop the action of Respondent no.1 - bank taking possession of suit property on 27.12.2021. I have gone through the case laws cited by the learned Advocate for the petitioners. The facts of cited cases and the case in hand are different, as in the present case, the petitioners have not produced the order of D.R.T. before this Court to show the reasons on which the petitioners' application is rejected as well as the petitioners have not purchased the suit property by registered sale deed. The petitioners are also challenging the order dated 03.03.2015 after lapse of six years.

          7.               In    view        of    the        above,        I     pass      the
          following order :-
                                                  ORDER


          (i)              Issue        notice           to       the        respondents,
          returnable            on    5th    January,           2022.       The      learned

A.G.P. waives service of notice for respondent Nos. 4 to 6.

          (ii)             Hamdust allowed.





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          (iii)            The parties to act upon authenticated
          copy of this order.


                                                     (S.G.DIGE, J.)

          SGA