Bombay High Court
Hdb Financial Services Limited Thr. Its ... vs The State Of Maharashtra Thr. Gp on 12 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:32649-DB
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Digitally signed
by KANCHAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KANCHAN VINOD
VINOD MAYEKAR
MAYEKAR Date:
2024.08.14
18:52:32 +0530
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1080 OF 2024
HDB Financial Services Limited ..... Petitioner
VERSUS
The State of Maharashtra & Ors. ..... Respondents
Mr. Charles Dsouza a/w. Mr. Padmakar Garad for the Petitioner.
Mr. N. C. Walimbe, Additional G.P. a/w. Mrs. M. S. Srivastava,
A.G.P. for the State.
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 12th AUGUST, 2024
P.C. :-
Rule. Rule made returnable forthwith and heard learned
counsel for the parties.
2. Leave granted to the learned counsel for the petitioner to
correct the description of the respondent no.3. The correction be
carried out forthwith.
3. By this writ petition, the petitioner, a creditor prays that the
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order passed under Section 14 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 dated 10th March 2023 be re-executed. This is
in view of the fact that after the aforesaid order was executed
and possession was delivered on 5th September 2023, the
respondent nos. 5 to 7 thereafter tresspassed into the property on
27th October 2023. Hence, the petitioner on 30 th October 2023
lodged a complaint. In this backdrop, the petitioner on 7 th
December, 2023 filed an application before the District
Magistrate seeking delivery of the possession again. Since no
steps were taken in this regard, the petitioner has approached
this Court.
4. We have heard the learned counsel for the petitioner who
submits that by the judgment dated 30 th June, 2023 passed in
Writ Petition No. 6805 of 2023 (Kotak Mahindra Bank Ltd. & Anr.
vs. State of Maharashtra & Ors.) to which one of us (Rajesh S.
Patil, J.) was a party, a similar issue has been considered and
decided. Directions have been issued to re-deliver possession and
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it has been made clear that it would not be necessary for the
creditor to initiate fresh proceedings under Section 14 of the said
Act.
5. We find that this Court in Kotak Mahindra Bank Ltd. & Anr.
(supra) has considered a similar issue and has held that it would
not be open for a party to dis-regard the action taken under
Section 14 of the said Act and re-enter into possession. In
paragraph (13) of the said order, it has been observed as under :-
13. Considering the law laid down by the Division
Bench of this Court and referred to by us above, we are
unable to agree with the submission made by the
learned AGP that the District Magistrate does not have
the power to re-execute his own order or that he has
become functus officio. If we were to take the view as
propounded by the learned AGP it would lead to a
complete chaos. We have no hesitation in stating that
the borrowers have devised a novel, unimaginable and
unsustainable modus operandi to defeat the ends of
justice. It is not only the matter of physical altercation
by assaulting the security guard appointed by the
Petitioner Bank and breaking open the lock and seal
affixed on the secured asset which is wholly illegal, but
the same would also tantamount to an assault on the
law and the statute itself. If, after orders are passed
under section 14 for dispossession of the borrower, and
the same are inter-meddled with by any person
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including the borrower, the same would result in a
mockery of the rule of law. In such a situation the court
cannot and should not remain a mute spectator and
allow the illegality to continue. The tendency of trying
to overreach the law as well as the orders passed by
Judicial Authorities has to be nipped in the bud right
away, lest the rule of law shall suffer.
6. In view of the aforesaid, we are satisfied that the petitioner
is entitled to a similar relief as was granted in the aforesaid writ
petition. Accordingly, the writ petition is allowed in terms of
prayer clause (b) which reads as under :-
(b) Your Lordships may be pleased to Issue a writ in
the name of Mandamus or suitable direction to
Respondent No.2 to 4 to restore the possession of the
secured asset/s mortgaged propertie/s i.e. all the piece
and parcel of the Property H B No. 18/2 situated on 2 nd
Floor area admeasuring 636 sq.ft. i.e. 59.11 sq. Mtrs.
having PCMC Milk at No-107601609.00 and Parperty
i.e. 59.11 sq.Mts. Build up situated at CTS No. 2154
Sheet No. 153 Opposite Shani Mandir near Sai Chouck,
Pimpari, Pune-411017 from Respondents No.5 to 10 in
compliance of orders dated 10/03/2023 passed by the
respondent No.2 in Securitisation Application No.
SECU/SR/803/2023, seeking assistance under section
14 of the SARFAESI Act, 2002 within the timeframe as
provided in the order.
7. It is clarified that this direction shall be executed if there is
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no legal impediment in the form of any prohibitive order issued
in proceedings filed by the respondent nos. 5 to 7.
8. Rule is made absolute in the aforesaid terms. No costs.
9. List this matter on 9th September, 2024 under the caption
"For Compliance".
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
