Bombay High Court
Shristi Petroleum vs Kotak Mahindra Bank Ltd on 11 January, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:718
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 809 OF 2024
IN
INTERIM APPLICATION (L) No. 34287 OF 2022
IN
COMM. EXECUTION APPLICATION No. 2165 OF 2022
WITH
COURT RECEIVER'S REPORT NO.8 OF 2024
IN
INTERIM APPLICATION (L) No. 34287 OF 2022
Shrishti Petroleum and ors .. Review Petitioner/orig
respondents
In the matter between
Kotak Mahindra Bank .. Applicant
Versus
Shristi Petroleum and ors .. Respondents
WITH
INTERIM APPLICATION (L) No. 809 OF 2024
IN
INTERIM APPLICATION (L) No. 34287 OF 2022
Shrishti Petroleum and ors .. Applicant
Versus
Kotak Mahindra Bank Ltd .. Respondent
...
Mr. Mathew Nedumpara with Ms.Hemali Kurne, B.S. Munday
and Sneha S. for the petitioner.
Mr.Ashish Kamath, Sr. Counsel with Ms.Bijal Gogri,
Ms.Shraddha Pawar i/b Om Gujar Law Chambers for decree
holder.
Mr.S.K. Dhekale, Court Receiver, present.
Tilak
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CORAM: BHARATI DANGRE, J.
DATED : 11th JANUARY 2024
P.C:-
1] Interim Application No. 809/2024 is taken out
seeking recall of the order dated 21/12/2022. I have heard learned
counsel Mr.Nedumpara, who has taken out the application.
Perusal of the Application intend to suggest that the
impugned order is a nullity in the wake of the Arbitration and
Conciliation Act, 1996 having no application to the provisions of
recovery of debts due to Banks and Financial Institutions and
with specific reference to Section 17 of the said Act.
Apart from this, a plea is also raised that the Micro
Small, Medium and Medium Enterprises Development Act, 2006
(for short 'MSME Act') protect the entity like that of the
petitioner and he would place reliance upon a notification dated
29/5/2015 issued in exercise of the powers u/s.9 of the said Act
by the Central Government and would submit that the intent of
the said statute and the notification is to facilitate the permission
and development of MSME, and hence, the Central Government
has notified the framework for revival and rehabilitation of such
Enterprises.
2] On perusal of the order dated 21/12/2023, it is
evident that it was passed on an Execution Application filed by
the Banking Company, seeking execution of an award dated
Tilak
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30/3/2018, for recovery of the amount of Rs.3,59,22,207.10 with
interest payable @ 36% p.a. from 27/7/2018 till its payment or
realization.
The decree was sought to be executed against the
present applicants M/s.Shrishti Petroleum, Mr.Bharat Bhuval P.
Rai, Sadhana Bharat Rai and B.R. Bazar.
The said order make a reference to the earlier
directions issued by this Court on 27/4/2023 (Justice B.P.
Colabawala), on an Interim Application seeking appointment of
Court Receiver for taking physical possession of the mortgage
property as well as certain disclosure.
3] On considering the arguments in support of the said
application, which was contested by the respondent nos.1 to 4,
the judgment debtors, the Court substantially considered the
arguments and recorded a finding that it is not in dispute that the
property described in the prayer clause (a) of the application is
mortgaged with the claimant and the claimant seek appointment
of Court Receiver in relation to the property and to take physical
possession of the same and to sell it by a treaty or by public
auction, so as to recover the amount due & payable under the
Award.
As a sequel of the same, the Court Receiver, High
Court, Bombay was appointed with all powers under Order XL
Rule 1 of Code of Civil Procedure to take physical possession of
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flat no.3002 situated on 30th floor, 'B' Wing, Metropolis Building,
J.P. Road, Four Bungalows, Andheri (W), along with two car
parking spaces from the respondents and/or any person, who is in
occupation thereof.
4] The Court Receiver was directed to take physical
possession of the suit property on 25/5/2023 at 12 noon, and in
the contingency, he would face resistance from the respondent,
was also tackled, by permitting the Court Receiver to break open
the locks if necessary, and to secure physical possession of the
property and to vacate the same with the assistance of the Senior
Police Inspector of local police station.
Upon taking physical possession of the flat, it was
directed that the articles lying therein to be handed over to the
respondents, though the Court Receiver was not permitted to sell
the said flat until further orders of the Court.
Upon the Special Leave to Appeal being filed before
the Apex Court on 25/5/2023, the execution proceedings came to
be stayed until the next date of hearing in the wake of the
submission advanced on behalf of the petitioner that his clients
would be willing to approach the Bank for one time settlement.
However, on 8/12/2023, by refusing to interfere in
the impugned judgment, the SLP was dismissed by recording
that the counsel for the petitioner would like to file fresh
settlement proposal with the respondent Bank, but the Court
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refrained to offer any comments in this regard.
5] It is subsequent to this order, the Court Receiver,
forwarded an intimation to the respondents, that the possession
of property shall be taken on 22/12/2023 at 10.30 a.m.
The matter was, therefore, requested to be urgently
listed and accordingly, on 21/12/2023, Bhuval Bharat P. Rai, who
was present in the Court, made a categorical statement that he is
in possession of the said flat and recorded though it was expected
that he would come up with some offer of payment, he did not,
and as such, I deemed it appropriate to postpone the process of
taking over possession of the property to 5/1/2024 and directed
the Court Receiver to serve an intimation and follow the
procedure of preparing an inventory before the belongings from
the subject flat are removed.
6] The present application seek recall of this order and
pertinent to note that the points which are sought to be raised as
regards the provisions of the Securitization and Reconstruction of
Financial Assets and Enforcement of Security Interest Act and
MSME Act and were not specifically raised at the time when
Interim Application seeking appointment of Court Receiver was
heard by Justice Colabawala.
In any case, what is done by the impugned order
which is sought to be recalled, is the implementation/execution of
the order dated 27/4/2023 and the learned counsel Mr.
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Nedumpara state that Review Petition has been filed by the
applicants, seeking review of the order dated 27/4/2023 and he is
awaiting circulation of the said petition.
In the mean time, Mr. Nedumpara would request that
the premises i.e. the subject flat no.3002 shall be restored to the
applicants, as according to him, it is the residential house of
Sadhana Bharat Rai, and she is presently homeless.
If it would have been possible to show any
indulgence, this Court would have definitely exercised the power,
but it is to be noted that, upon the exercise being directed to be
carried out, the Court Receiver has submitted its report
No.8/2024 upon executing the order and it is informed to the
Court that the possession of the suit flat was taken over after
preparing inventory of the articles lying in the flat and the new
locks are affixed to the premises, which are now sealed by putting
a board of the Court Receiver.
Ultimately, the fate of the proceedings would now
depend upon the Review Petition and reserving the liberty to
circulate the petition and obtain necessary orders, the present
application is rejected.
7] It is pertinent to note that the indulgence is also
declined on the ground that the exercise was in fact directed to be
carried out much earlier in terms of the order dated 27/4/2023,
but by showing indulgence, it was postponed and sufficient time
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was given to the applicants to remove themselves from the
premises and hand over the vacant possession in satisfaction of
the Award, but they did nothing.
Hence, I am not inclined to consider the prayer by
Mr.Nedumpara that, till the Review Petition is decided, the
exercise undertaken by the Court Receiver, shall be undone and
the possession of the flat shall be handed over to the applicant.
Mr. Nedumpara at this stage, also make a request that
the possession of the flat shall be restored to the applicant subject
to payment of any rent or whatever charges the Court may deem
fit, but since there is no provision in law which would permit such
exercise to be undertaken, even this request is rejected.
8] The Court Receiver Report No.8/2024 has sought
directions from the Court in respect of the inventory of articles
lying in the suit flat.
In the wake of the said report, I deem it appropriate
to direct that the articles shall be retained in the flat in the same
position, as the flat is now sealed and a new lock has been put up
by the Court Receiver until further order.
List the Court Receiver Report on 12/2/2024.
( SMT. BHARATI DANGRE, J.)
Tilak
