Bombay High Court
M/S Jeev Urja Pvt Ltd Through Its ... vs The State Of Maharashtra Through Its ... on 7 August, 2024
2024:BHC-AUG:17948
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8021 OF 2023
M/S JEEV URJA PVT LTD THROUGH ITS DIRECTORS
VASANT SHANKARRAO KULKARNI AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH ITS DISTRICT
MAGISTRATE COLLECTOR AND OTHERS
...
Mr. S. S. Kazi h/f Mr. Varun Singh, Advocate for the Petitioners.
Mr. K. B. Jadhavar, AGP for Respondents-State.
Mr. A. M. Inamdar, Advocate for Respondent Nos.1 to 2.
Mr. Balraj B. Kulkarni, Advocate for Respondent No.3.
Mr. D. B. Kale, Advocate for Respondent Nos.4 and 5.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 07th AUGUST, 2024.
P.C.:-
1. The petitioners approached this Court under Article 227 of
the Constitution of India impugning order dated 27.02.2023 passed
under Section 14 of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
(for short 'SARFAESI Act') by the District Magistrate and
consequential notice dated 03.05.2023 issued by respondent no.2-
Tahsildar.
2. Mr. Kazi, learned Advocate appearing for the petitioners
submits that the District Magistrate was misrepresented by the
respondent-Bank while obtaining impugned order. The false
statement was made in the application that no proceeding in
subject matter is pending. Although challenge to the notice under
Section 13(4) of the SARFAESI Act issued by the Bank seeking
physical possession of the secured asset was assailed before DRT,
Aurangabad in S.A. No.310/2022 invoking Section 17 of the
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SARFAESI Act, the impugned order under Section 14 was secured
by the Bank.
3. Mr. Kazi would submit that District Magistrate had not
issued notice to the petitioners nor granted any opportunity of
hearing. Further District Magistrate was obliged to pass order
within 30 days of filing the application, however, same has been
passed after five months. He would urge that impugned order is
liable to be quashed and set aside being defiance of the principles of
natural justice and procedure contemplated under SARFAESI Act.
To buttress his contentions he relies upon observations of the
Supreme Court of India in cases of Mardia Chemicals Ltd. and
Others Vs. Union of India and Others1, Shree Shantinath
Steels and Another Vs. Union of India and Others2 and
Hindon forge Private Limited and Another Vs. State of Uttar
Pradesh through District Magistrate, Ghaziabad and
Another3.
4. I have considered submissions on behalf of the petitioners.
Before dealing with the contentions raised, it would be appropriate
to refer to the recent judgment of the Supreme Court of India in
case of M/s. South Indian Bank Ltd. and Others Vs. Naveen
Mathew Philip and Another Etc. Etc.4, wherein in paragraph
no.17, the Supreme Court has cautioned the High Courts as under:
"We shall reiterate the position of law regarding the
interference of the High Courts in matters pertaining to the
SARFAESI Act by quoting a few of the earlier decisions of
this Court wherein the said practice has been deprecated
while requesting the High Courts not to entertain such cases."
1 (2004) 4 Supreme Court Cases 311.
2 2024 SCC OnLine SC 1864.
3 (2019) 2 SCC 198.
4 (2023) 6 SCALE 224.
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5. Secondly Division Bench of this Court in case of Nageshwar
Rao S/o. Rajshekhara Rao Neti and Others Vs. Collector,
Collector office and Others5 giving reference to the law laid
down by Supreme Court in case of United Bank of India Vs.
Satyawati Tondon and others6 observed that remedy under
Section 17(1) of SARFAESI Act is of wide import and the person
aggrieved by orders passed under Section 14 of the SARFAESI Act
can avail said remedy and also observed that writ petitions against
orders passed under Section 13(4) or Section 14 of the SARFAESI
Act shall not be entertained, unless alternate remedy is exhausted.
In case of Hari Trading Corporation Vs. Bank of Baroda 7, the
Division Bench of this Court observed that the question of giving
hearing to the borrower at the stage of taking possession does not
arise, as he has remedy under Section 17 of the SARFAESI Act.
Even judgment relied upon by the petitioners in case of Hindon
forge Private Limited and Another (supra) lays down similar
preposition of law that remedy under Section 17 of the SARFAESI
Act can be availed assailing action under Section 13(4) or 14 of the
SARFAESI Act.
6. Keeping in mind the aforesaid exposition of law, challenge
raised in this petition cannot be entertained, firstly for the reason
that impugned order dated 27.02.2023 is already executed and
possession of the mortgaged property is handed over to the creditor
and secondly, the petitioners had availed remedy before the DRT to
assail the notice under Section 13(4) of the SARFAESI Act in S.A.
No.310/2022. However, the same has been already dismissed by
DRT. On specific query by this Court Mr. Kazi informed that the
petitioners have not assailed the order of DRT before Appellate
Tribunal. In that view of the matter, by granting liberty in favour
5 2023 (2) Bom.C.R. (Cri.) 228.
6 2010 (8) SCC 110.
7 2015 (3) BankCas 284.
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of the petitioners to avail appropriate remedy as permissible under
law, writ petition stands dismissed.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2024
