Associated Engineering ... vs Panzarkan Sahakari Sakhar ...
2021 Latest Caselaw 2449 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         WRIT PETITION NO. 5973 OF 2016

 Associated Engineering Corporation
 Through its Power of Attorney holder
 Surendrasing s/o Jalamsing Deore                ... Petitioner
       Versus
 Panzarkan Sahakari Sakhar Karkhana Ltd.
 Bhadne and another                              ... Respondents
                                   ....
 Ms Madhaveshwari D. Thube Mhase, Advocate for the petitioner
 Mr. A. B. Chate, AGP for respondent No.1
 Mr. S. B. Gorde Patil, Advocate for respondent No.2
                                   ....

                                    CORAM : R. G. AVACHAT, J.

DATED : 08th FEBRUARY, 2021

PER COURT :-

. The challenge in this writ petition is to the order dated

20.01.2016 passed by the 2nd Joint Civil Judge, Junior Division,

Dhule below Exh.59 in Special Darkhast (execution proceeding)

No.27 of 2001. The petitioner herein is the original decree holder.

Respondent No.1 is the original judgment debtor. Respondent No.2

Maharashtra State Central Co-operative Bank is the intervener in the

execution proceeding.

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2. The petitioner had filed suit against the respondent for

money decree. It was a suit, being Special Civil Suit No.130 of 1999.

The suit was decreed on 19.04.2001, directing respondent No.1 to

pay the petitioner a sum of Rs.9,50,731/- together with 22% interest

p.a. on the principal amount of Rs.6,03,397/- till the realisation of

the said amount. The petitioner filed the execution proceedings

(Special Darkhast No.27 of 2001). He moved application for

attachment of the immovable properties of respndent No.1 -

judgment debtor. The executing Court allowed the application and

attached the immovable properties of the judgment debtor.

Respondent No.2 intervened in the execution proceedings and

moved application Exh.59 for withdrawal of the order of the

attachment of the immovable properties of the judgment debtor. The

executing Court vide its order dated 20.01.2016 allowed application

Exh.59. It also recalled the orders dated 02.02.2009 and 12.11.2009

of attachment and sale of certain immovable properties passed below

Exh.32 and Exh.40 The immovable properties described in the

application were freed from the said attachment.

The aforesaid order is under challenge in this writ

petition.

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3. Ms Madhaveshwari D. Thube Mhase, learned Advocate

for the petitioner would submit that the petitioner holds a decree

that was passed before the immovable properties of the judgment

debtor came to be attached by the intervener bank. The claim of the

petitioner - decree holder shall have a priority over all other claims

of the respondent intervener bank. The executing Court erred in

passing the impugned order. According to the learned Advocate,

Section 37 of the Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002 (for short 'the

Act of 2002'), saves operation of any other law for the time being

inforce. She, therefore, urged for setting aside of the impugned

order.

4. Learned Counsel for respondent No.2 - intervener bank

would on the other hand submit that the bank is a secured creditor.

It has initiated proceedings under the Act of 2002 in enforcing its

security interest. The petitioner has a remedy of appeal under

Section 17 of the Act of 2002. According to him, the writ petition is

not maintainable.

5. Admittedly, respondent No.2 - intervener bank is a

secured creditor. It has initiated measures under Section 13 of the

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Act of 2002 for enforcement of its security interest. The petitioner is

an unsecured creditor. The intervener bank has taken over

possession of the mortgaged properties of the judgment debtor sugar

factory. The intervenor bank has a preferential charge on the

properties of the judgment debtor, respondent No.1. The executing

Court has rightly observed that civil Court cannot attach the

properties which are already attached and taken in possession by the

secured creditor. If the petitioner has any grievance against the

order/orders passed under the Act of 2002, it has a remedy under

Section 17 of the Act of 2002. Section 17(1) of the Act of 2002 reads

thus:

"17. [Application against measures to recover secured debts].--(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter,[may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken:"

In the case of Marathwada Gramin Bank vs. Maharashtra

State Co-operative Bank Ltd. and others reported in 2007(2) Mh.L.J.

594 , it has been observed thus:

"(b) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), S. 17 and Constitution of India, Art. 226 -

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Efficacious alternate remedy - Rule of alternate remedy before a writ is granted is a rule of self imposed limitation, a rule of policy and discretion than a rule of law."

6. In view of the above, the petitioner ought to have

availed the remedy under Section 17 of the Act of 2002. The

executing Court has passed well reasoned order.

I do not find any jurisdictional error in the impugned

order. The writ petition is therefore liable to be dismissed. The same

is thus, dismissed.

[ R. G. AVACHAT, J. ]

SMS

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