Bombay High Court
Mahendra Sridhar Attarde vs The State Of Maharashtra Thr. G.P. And ... on 4 February, 2025
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:5822-DB
RAMESHWAR
LAXMAN 2-WP-13377-2024judgment.doc Rameshwar Dilwale
DILWALE
Digitally signed by IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RAMESHWAR
LAXMAN DILWALE CIVIL APPELLATE JURISDICTION
Date: 2025.02.06
17:41:41 +0530
WRIT PETITION NO.13377 OF 2024
Mahendra Sridhar Attarde }
Aged about 52 years, }
Adult, Indian Inhabitant, residing at Flat }
No.702, Shiv Siddhi Lok Kailash C. H. S. L, }
J.S.D. Road, Mulund-West-400 080. }
.. Petitioner
Versus
1. The State of Maharashtra, to be served }
Through Government Pleader, High Court, }
Mumbai }
2. Swagat Housing Finance Company Ltd. }
A company registered under the provisions of }
Section 29A having office at A-1/207, Laram }
Centre, S. V. Road, Andheri-West-400 058. }
3. Mrs. Rekha Narayan Thakker }
4. Mrs. Ansuya Narayan Thakker, }
both Adults, Indian inhabitants, having address }
at 29, 3rd floor, Shree Ram Niwas, Kisan Nagar 1, }
Mulund Check Naka-Thane-West-400 604 }
.. Respondents
...
Mr. A.M. Saraogi, Advocate for the Petitioner.
Mr.N.K. Rajpurohit, Assistant Government Pleader for Respondent
No.1.
Mr. Sanjay Anabhawane, Advocate for Respondent No.2.
Mr. Suresh Dubey, Advocate for Respondent Nos.3 and 4.
...
CORAM : A.S. CHANDURKAR &
M.M. SATHAYE, JJ
DATE : 4TH FEBRUARY 2025.
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2-WP-13377-2024judgment.doc Rameshwar Dilwale
ORAL JUDGMENT :(A. S. CHANDURKAR, J)
1. Rule. Rule made returnable forthwith and heard learned
counsel for the parties. The petitioner is aggrieved by the order
dated 21/08/2024 passed by the learned Chairperson, Debts
Recover Appellate Tribunal, Mumbai (for short, 'DRAT') in Appeal
No.78 of 2022. By the said order, while dismissing the appeal
preferred by the petitioner wherein challenge was raised to the
order dated 09/02/2021 passed by the learned Presiding Officer,
Debts Recovery Tribunal, Mumbai, (for short, 'DRT') directions in
favour of respondent no.2-Finance Company were issued without
the order of the DRT being challenged by it.
2. The petitioner claims to be an unpaid seller pursuant to an
agreement dated 08/01/2015 entered into with respondent nos.3
and 4. Securitization Application No.21 of 2020 was filed by the
petitioner questioning the measures initiated by the Finance
Company under provisions of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (for short, 'Act of 2002') for recovering the dues
from respondent nos.3 and 4. The learned Presiding Officer of the
Tribunal held that the measures taken by the Finance Company
under Section 13(4) of the Act of 2002 were not in accordance with
2-WP-13377-2024judgment.doc Rameshwar Dilwale
the provisions of the Act of 2002. Considering the rights of the
petitioner as an unpaid seller, the petitioner was directed to file an
undertaking that he would not alienate the subject property or
create any third party rights therein. The Finance Company was
directed to restore physical possession of the subject premises to
the petitioner within a period of two weeks. On aforesaid terms
Securitization Application No.21 of 2020 was allowed.
3. The petitioner being aggrieved by the direction to furnish an
undertaking preferred an appeal before the DRAT. The order dated
09/02/2021 passed by the DRT was not challenged by the
Finance Company. By the impugned order, the learned
Chairperson while holding that the petitioner was estopped from
challenging the measures taken under Section 17 of the Act of
2002 also set aside the directions issued to the Finance Company
to restore possession.
4. Having heard the learned counsel for the parties we are of
the view that the impugned order dated 21/08/2024 passed by
the DRAT is liable to be set aside on the short ground that
directions issued in favour of the petitioner by the DRT not having
being challenged by the Finance Company, the same could not
2-WP-13377-2024judgment.doc Rameshwar Dilwale
have been set aside in the appeal preferred by the petitioner. It is
not in dispute that it was only the petitioner who challenged the
order dated 09/02/2021 passed by the DRT. The petitioner was
directed to furnish an undertaking by the DRT and the Finance
Company was directed to restore possession of the subject flat to
the petitioner. While dismissing the petitioner's appeal, the
petitioner could not have been placed in a worse position than he
was when the DRT decided the Securitization Application. A
direction issued in his favour by the DRT could not have been set
aside in his appeal by the DRAT. On this short ground, the
impugned order is liable to be set aside and the appeal preferred
by the petitioner ought to be re-considered on merits.
5. For aforesaid reasons, the following order is passed :-
(a) The order dated 21/08/2024 passed by the
learned Chairperson, Debts Recovery Appellate
Tribunal in Appeal No.78 of 2022 is set aside.
The proceedings are remanded to the Debts
Recovery Appellate Tribunal for re-consideration.
(b) As an interim measure and without prejudice to
the rights and contentions of either parties,
subject to the petitioner depositing an amount of
Rs.10 lakhs by way of security before the Debts
Recovery Appellate Tribunal, the possession of
2-WP-13377-2024judgment.doc Rameshwar Dilwale
Flat No.706, A-2, Shiv Siddhi Lok Kailas Co-op.
Housing Society Ltd., Mulund (West), Mumbai
shall be restored to the petitioner subject to final
outcome of the appeal. The petitioner however
shall not create any third party rights in the
aforesaid property till the appeal is decided
afresh. On the petitioner depositing the
aforesaid amount of Rs.10 lakhs with the Debts
Recovery Appellate Tribunal, respondent no.2
shall within a period of one week from such
deposit, restore possession of the aforesaid flat
to the petitioner.
(c) It is made clear that all other remedies of either
parties are kept open for being availed of, if so
advised.
6. Rule is made absolute in aforesaid terms with no order as to
costs.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
