Bombay High Court
Religare Finvest Limited vs State Of Maharashtra Thr Tehsildar ... on 31 January, 2024
Author: B.P. Colabawalla
Bench: B.P. Colabawalla
2024:BHC-AS:4844-DB
5-WP-15493-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15493 OF 2023
Religare Finvest Limited .. Petitioner
Versus
1. State of Maharashtra
through Tehsildar, Purandar
& 2 Ors. ...Respondents
Mr. Archit Virmani, Advocate for Petitioner.
Mr.A.I. Patel, Addl. G.P. a/w. Mr.R.S.Pawar, AGP for Respondent
Nos.1 & 3-State.
Mr.Dattatray Gawari, Naib Tahsildar, Purandar is present in
Court.
CORAM : B.P. COLABAWALLA &
SOMASEKHAR SUNDARESAN, JJ.
DATE : JANUARY 31, 2024.
PC:
1. The above Writ Petition is filed inter alia seeking a direction to the
Respondents to withdraw and/or cancel the impugned Notice dated 30 th
November 2023. The impugned notice was issued by Respondent No.1-
Tehsildar, Purandar putting the property mortgaged with the Petitioner-
January 31, 2024
Shraddha Talekar, PS
5-WP-15493-2023.doc
NBFC for sale for recovery of an amount of Rs.32,75,439/-. This amount
was sought to be recovered because of an order passed by Maha-RERA
authority and the Warrant issued by the said authority on 30 th June 2022
under Section 40(1) of the Real Estate (Regulation and Development)
Act, 2016 and Rule 3 of Maharashtra Real Estate (Regulation and
Development) (Recovery of Interest, Penalty, Compensation, Fine
payable, Forms of Complaints and Appeals, etc.) Rules, 2017. The
grievance of the Petitioner is that the entire project is mortgaged with the
Petitioner NBFC, and therefore, no notice could have been issued either
attaching any property in the said project or sale of the same to recover a
claim of a purchaser, who at the highest, has an unsecured claim.
2. The learned Addl.G.P. has filed an affidavit in reply, dated 30 th
January 2024 in which the procedure followed by Respondent No.1 for
attaching and thereafter putting to sale the mortgaged property is set out.
However, in paragraph 7 of this affidavit, the 1 st Respondent has stated
that the said notices hereby stand withdrawn. Paragraph 7 of this
affidavit, for ready reference, is reproduced hereunder :
7. I say that upon receiving Warrant under Section
40(1) of RERA Act, my office has issued notice under Rule
9 of Maharashtra Land Revenue Rules, 1966 on 23.7.2023
and 31.07.2023, thereby attaching the said property which
is subject matter of this Petition. Thereafter, vide notice
dated 30.11.2023 under Rule 12(2)(C), the property was put
for auction/sale by my office. However, since the said
property is secured asset/mortgaged to the Petitioner bank
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Shraddha Talekar, PS
5-WP-15493-2023.doc
under Section 26(E) of the SARFAESI Act, the said
Petitioner have priority over the unsecured asset and as per
the Judgment of this Hon'ble Court I have to handover
possession implementing the order under Section 14 of the
District Magistrate, Pune. In view of the aforesaid fact, the
notice dated 30.11.2023 was issued by my office under Rule
12(2)(C) of the Maharashtra Land Revenue Rules, 1966.
Hereto ..annexed and marked as Exhibit R-3 Colly are the
copies of 2 notices under Rule 9 dated 23.07.2023 and
31.07.2023 Exhibit R-4 is the copy of notice under Rule
12(2)(C) dated 30.11.2023.
I hereby withdraw the said notices and have authorized
Circle Officer, Bhiwandi, Tal. Purandar to take possession,
who has issued notice dated 30.1.2024 for taking
possession of the secured asset and to handover the same
to the Petitioner being secured creditors and further
request for police protection from the concerned police
authorities. This Hon'ble Court may be pleased to direct
the Petitioner to pay necessary charges for the said police
protection.
(emphasis supplied)
3. In light of this affidavit, the grievance raised by the Petitioner in
the above Petition now stands redressed.
4. We are informed by the learned Addl. G.P. that taking of
possession of the secured asset is fixed on 12 th February 2024 at 11:00
a.m. We find that this period may be too short for serving the possession
notice on the borrowers, and hence, we direct that physical possession of
the secured asset shall be taken on 21 st February 2024. The notice of the
date of taking possession of the secured asset shall be immediately served
by the Tehsildar on the borrowers informing them that possession will be
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5-WP-15493-2023.doc
taken on 21st February 2024. For the purposes of ensuring that
physical possession is taken on the said date, the Senior Inspector
of local Police Station is directed to provide all police assistance to
the Tehsildar (including deputing adequate number of police
personnel) to assist the Tehsildar in taking physical possession of
the secured asset and thereafter handing over the same to the
authorised officer of the Petitioner. All necessary costs, charges and
expenses for the said police assistance shall be paid by the
Petitioner. We make it clear that if for any reason, the police
protection is not provided, we will not hesitate to hold the
concerned Senior Police Inspector liable for contempt of this order.
5. We may further clarify that this order of taking possession on 21 st
February 2024 is subject to any order passed by the Debts Recovery
Tribunal ('DRT'), if approached by the borrowers. In other words, the
DRT is free to restrain the Petitioner-NBFC from taking possession of the
secured asset if it finds any merit in the case advanced before it by the
borrowers.
6. The Writ Petition is disposed of in the aforesaid terms. However,
there shall be no order as to costs.
January 31, 2024
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5-WP-15493-2023.doc
7. Though we have disposed of the Writ Petition, we place the same
on Board for reporting compliance on 22nd February 2024.
8. This order will be digitally signed by the Private Secretary/Personal
Assistant of this Court. All concerned will act on production by fax or
email of a digitally signed copy of this order.
[ SOMASEKHAR SUNDARESAN, J. ] [ B.P. COLABAWALLA, J. ]
January 31, 2024
Shraddha Talekar, PS
