Bank Of India vs Ravindra Pitambar Patil
2022 Latest Caselaw 4648 Bom

                                 1/7                    901 AO-171-22.doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
                  APPEAL FROM ORDER NO.171 OF 2022
                               WITH
                 INTERIM APPLICATION NO.1143 OF 2022


Bank of India                              ..     Appellant

                       Versus

Ravindra Pitambar Patil                    ..     Respondent
                                       ...

Mr.O.A.Das for the Appellant.


                          CORAM: BHARATI DANGRE, J.

DATED : 2nd MAY 2022

P.C:-

1. The present Appeal from Order is fled by the Bank of

India, being aggrieved by an order passed by the City Civil

Court, Gr.Mumbai on 01/12/2021 in an Execution Application

No.221 of 2018, arising out of Summary Suit No.1373 of 2017.

The appellant-bank sought it's impleadment in the suit

proceedings in the peculiar facts, evincing it's interest in the

execution, but the learned Judge rejected the application on

two counts; frstly it is open for the bank to follow the

appropriate proceedings under the SARFAESI Act, which route

the bank had in fact followed and in these circumstances, the

M.M.Salgaonkar

2/7 901 AO-171-22.doc

Civil Court cannot entertain it. Another ground being, that the

execution is being carried out pursuant to a decree passed by

the City Civil Court in Summary Suit No.1373 of 2017 between

distinct parties i.e. Ravindra Pitambar Patil and one Mrs.Aditi

Sawant, defendant No.4, who has no concern with the bank.

2. Heard the learned counsel Mr.Das for the appellant.

Despite the notice being served and though on 16/03/2022, I

have deemed it ft to await the presence of the respondents,

none appears even today, which constrain me to hear the

learned counsel for the appellant on merits and with his

assistance, I have perused the compilation of documents

placed on record.

3. As far as the bank is concerned, it had the borrowers,

namely, Mr.Vivek Patil and his wife Snehal Patil, who had

purchased Flat No.1A/103, First Floor, Wing 'A', Building No.1,

Bhavani Enclave C.H.S. Ltd., Mulund (E) from one Mrs.Aditi

Sawant vide a registered deed and had obtained housing loan

for the said purpose from the bank. For securing the said loan,

the husband and wife executed security documents and

submitted original title deed to the appellant-bank and created

mortgage of the very same fat in it's favour. The security

documents and title deed are placed on record by the bank.

M.M.Salgaonkar





                                  3/7                901 AO-171-22.doc

The bank even forwarded an intimation letter with the Central

Registry of Securitisation Asset Reconstruction and Security

Interest of India (CERSAI) about the equitable mortgage being

created by Mr.Vivek Patil and his wife.

4. Since, there is a default on part of the borrowers and

their account was declared as NPA, the bank issued notice

under Section 13(2) of the SARFAESI Act, 2002 on

01/02/2019 and on 15/04/2019 i.e. on expiry of statutory

period of 60 days to take symbolic possession of the property.

Necessary orders were also obtained from the court of CMM

for taking physical possession of the property under Section

14 of the SARFAESI Act and on 22/11/2019, the physical

possession of the fat in question is also taken. The necessary

documents to that effect are compiled in the paper-book, which

consist of the 'possession notice' being issued by the offcer of

the bank on 15/04/2019 and the intention to take possession

by following the procedure prescribed under Section 13(8) of

the SARFAESI Act.

5. While the physical possession was being taken, it dawned

upon the appellant-bank that there was an attachment over

the suit fat by the City Civil Court, Mumbai and on further

inquiry, it is revealed that in a Summary Suit No.1373 of 2017

M.M.Salgaonkar

4/7 901 AO-171-22.doc

fled by one Ravindra Patil and two others against Mrs.Aditi

Sawant, a decree was granted in favour of the plaintiffs i.e.

Ravindra Patil & Ors. against Mrs.Aditi Sawant, who was held

liable for payment of Rs.23,50,000/- to the plaintiffs, within a

period of three months alongwith simple interest at the rate of

9% p.a..

The judgment, being delivered on 12/03/2018, was put

up for execution by fling Execution Application No.221 of 2018

and, since, the bank became aware of this development, it fled

an application seeking impleadment in the said proceedings,

on the ground that it has already obtained an order against the

borrowers, Mr.Vivek Patil and Mrs.Snehal Patil, who had

availed loan from the bank and who were in default and the

subject matter of Summary Suit No.1373 of 2017 is same as

the subject matter of the SARFAESI proceedings initiated by

the bank, which has reached upto the stage 13(8) of the

SARFAESI Act and the physical possession of the property is

with the bank, is the statement of the learned counsel for the

appellant.

In this contingency, if the possession remains with the

bank, the execution proceedings cannot proceed as the bank as

a creditor, has availed due procedure available to it under the

M.M.Salgaonkar

5/7 901 AO-171-22.doc

SARFAESI Act and taken possession of the suit property and

this is bound to create obstacle in executing the decree

granted by the City Civil Court, was projected as a ground for

intervention.

6. In these circumstances, it was expedient on the part of

the City Civil Court to allow the impleadment of the bank, since

the subject matter of the execution proceeding pending before

it and the interest of the bank are clashing, as the proceedings

initiated by the bank reached upto the stage of the possession

and, since, the bank was apparently interested in the suit fat,

in order to resolve the conundrum and considering the rights

and interest of the parties involved, it was imperative for the

learned Judge to allow the impleadment of the bank and,

thereupon after affording an opportunity of hearing, the

learned Judge ought to have considered passing of further

order, whether the attachment is to be raised or not, at the

instance of the bank.

7. Unfortunately, the learned Judge has failed to recognize

any right of the bank and refused it's intervention on the

technical ground that the City Civil Court does not have

jurisdiction to try the proceedings under the SARFAESI Act.

Ultimately, the bank has already followed the procedure under

M.M.Salgaonkar

6/7 901 AO-171-22.doc

the SARFAESI Act, but since the property involved in the civil

proceeding and the SARFAESI proceeding is the same, it was

more appropriate to permit the impleadment of the bank, who

also has interest in the suit property.

8. In light of the above, the impugned order, rejecting the

Notice of Motion fled by the bank deserves to be set aside. The

bank shall be permitted to intervene in the execution

proceedings and upon hearing the submissions of the bank, the

Court will take a decision about raising the attachment, since a

specifc statement is made by the learned counsel for the

appellant that the possession of the suit fat, as on date, is with

the bank. The contention of the bank is to the effect that

Mr.Vivek Patil and his wife are acting in collusion with

Rajendra Patil and in order to defraud the amount due to the

bank, a novel method has been adopted by them. The said

contention can be tested by the learned Judge after hearing all

the concerned parties, including the appellant-bank.

Necessarily, the impugned order is quashed and set aside.

The Appeal from Order stands allowed in the aforesaid

terms.

On allowing the intervention, the learned Judge is

expected to take up the proceedings forthwith, since the

M.M.Salgaonkar

7/7 901 AO-171-22.doc

property is in possession of the bank since 2019 and in case if

the bank is permitted to sell the property, the dues payable to

the bank as well as to the plaintiffs in the suit, can be adjusted.

The proceedings shall be decided within one month from the

date of impleadment.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar