Bombay High Court
Adinath Co-Operative Bank Ltd vs The State Of Maharashtra Through The ... on 26 February, 2025
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2025:BHC-AS:9652-DB
Digitally
signed by 28.WP.3475.2024 C.doc
ANANT
ANANT KRISHNA
KRISHNA NAIK
NAIK Date:
2025.03.01
11:07:41
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3475 OF 2024
Shri Adinath Co-operative Bank Ltd. )
Ichalkaranji, through Authorized Officer )
Shri Nilesh Dadaso Bagane, )
Head Office - 7/23, 24, Adat Peth, )
Janta Chowk, Ichalkaranji, )
Tal-Hatkanangale, Dist. Kolhapur ) .. Petitioner
Versus
1. The State of Maharashtra )
Through The District Magistrate, )
@ Collector, Kolhapur )
2. Tahasildar, Hatkangale )
3. Mandal Officer, Kabnoor, )
Tal-Hatkangale, Dist. Kolhapur )
4. Shri Yogesh Ashok Kadam )
Age - Adult, Occ. Business )
Prop. M/s. Shri Mahalaxmi Textiles, )
22/13333, Barshikar Chal, Ganesh Nagar, )
Shahapur, Ichalkaranji, )
Tal-Hatkanangale, Dist. Kolhapur )
5. Shri Dattatray Narhari Kadam, )
Age-Adult, Occ. Business, )
Address- As above. )
6. Shri Kalavati Narhari Kadam )
Age-Adult, Occ-Business )
Address-As above. )
7. Shri Balkrishna Narhari Kadam, )
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Age-Adult, Occ. Business, )
Address- As above )
8. Shri Ashok Narhari Kadam since deceased )
through Legal Heirs )
8A) Subhadra Ashok Kadam )
Age-55, Occ. Household )
8B) Yogesh Ashok Kadam )
Age-30, Occ. Service )
8C) Neha Tanaji Kaldate )
Age-28, Occ. Household )
8A to 8C at R/o. 22/8333, Barshikar Chal )
Ganeshnagar, Ichalkaranji, )
Tal-Hatkangale, Dist. Kolhapur )
9. Shri Navnath Mohan Pawar )
Age-Adult, Occ.-Business )
Address- As above. )
10. Shri Chandrakant Narhari Kadam )
Age-Adult, Occ.- Business )
Address - As above. ) ... Respondents
****
Mr. Sandeep Koregave a/w. Ms. Pallavi A Karanjkar, Advocates for the
Petitioner.
Mr. N.C. Walimbe, Additional Government Pleader a/w. Mr. S.P. Kamble,
Assistant Government Pleader for the Respondent Nos. 1 to 3
****
CORAM : A. S. CHANDURKAR &
M. M. SATHAYE, JJ.
DATED : 26th FEBRUARY 2025
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JUDGMENT (Per M. M. SATHAYE, J):
1. Rule. Rule made returnable forthwith. Heard finally by consent of
learned Counsel for parties.
2. By this Petition, the Petitioner Co-operative Bank, is seeking a
direction against the Respondent Nos. 1 to 3 to execute an order passed by
the Respondent No. 1-Magistrate dated 23/02/2021 and re-instate the
Petitioner in possession of the Secured Asset. The Respondent Nos. 4 to 10
are the borrowers who had taken loan from the Petitioner-Bank by
mortgaging certain properties, which are secured assets. The borrowers did
not repay the loan and their accounts become Non-Performing Assets (NPA).
The Petitioner initiated proceedings under the Securitisation And
Reconstruction Of Financial Assets And Enforcement Of Security Interest
Act, 2002 (for short "the said Act") and notice under section 13(2) thereof
was issued. Thereafter, the notice u/s. 13(4) of the said Act was issued.
Since the borrowers obstructed taking of physical possession, the Petitioner
filed an application under section 14 of the said Act and the Respondent No.
1-Magistrate passed the aforesaid order, pursuant to which the Petitioner
was put in possession of the Secured Assets on 18/03/2021. The Petitioner
thereafter appointed watchman on the site for supervising the secured
assets. On 13/04/2021, the borrowers trespassed into the secured assets by
breaking open the lock and entering it forcefully. The Petitioner therefore
filed FIR No. 0107 of 2021 with concerned police station. The copies of
panchanama taking possession of the secured assets and subsequent FIR
after trespass has been produced on record. The Petitioner therefore again
filed an Application under section 14 of the said Act, which came to be
rejected under the communication/order dated 24/05/2023. It is in these
28.WP.3475.2024 C.doc
circumstances that the Petitioner-Bank has approached this Court seeking to
quash and set aside the order dated 24/05/2023 and further seeking
direction for re-instatement of the possession.
3. Notices were issued and the Respondent Nos. 4 to 7, 9 and 10 were
served. The Respondent No. 8 was reported to be dead. The Petitioner-Bank
took out an Application for bring legal heirs of the Respondent No. 8 on
record being IA/14553/2024. The legal heirs of the Respondent No. 8
(Respondent Nos. 8A to 8C) were served through court bailiff. There is office
note to that effect. By a separate order, legal heirs of Respondent No. 8 have
been brought on record. Thus, the Respondent Nos. 4 to 10 are duly served.
However, nobody appears for them.
4. The Petitioner has relied upon the judgment and order passed by this
Court in the matter of same Petitioner - Adinath Co-operative Bank Ltd.,
Ichalkaranji, Dist. Kolhapur vs The State of Maharashtra, Thr. The District
Magistrate & Collector, Kolhapur & Ors.1 He submitted that the facts of the
present case are squarely covered by the said judgment.
5. Learned Additional Government Pleader appearing for the Respondent
Nos 1 to 3 was at pains to justify the impugned order of the Respondent
Magistrate, however he could not distinguish the facts of the present case
from the judgment relied upon.
6. In the matter of Adinath Co-operative Bank Ltd., Ichalkaranji, Dist.
Kolhapur (supra) this Court has considered the settled view of this Court as
laid down in the case of Nashik Merchant Co-operative Bank vs. The District
1 Bombay High Court W.P. No. 3476 of 2024 Order dt. 09/10/2024.
28.WP.3475.2024 C.doc
Collector, Jalna & Ors.2 followed by Kotak Mahindra Bank Ltd. & Anr. Vs.
State of Maharashtra & Ors.3 where it is held that on the borrowers
trespassing in the secured asset after it is taken in possession pursuant to an
order under Section 14 of the said Act, the Magistrate can re-exercise its
power. We find that the facts of the present case are squarely covered.
7. Hence following the said consistent view, the Petition is allowed in
terms of prayer clause (a) which reads as under:
(a) This Hon'ble High Court be pleased to issue an appropriate writ of
mandamus or any other appropriate writ, or order or direction in the like nature,
the Respondent No. 1 to 3 be directed to execute the order passed by the
Respondent No. 1 dated 23.02.2021 by restituting the possession of the secured
assets to the Petitioner.
8. Rule is made absolute in above terms with no order as to costs.
All concerned to act on duly authenticated or digitally signed copy of
this order.
(M. M. SATHAYE, J.) (A. S. CHANDURKAR, J)
2 High Court of Bombay in WP/10069/2022 decided on 28/02/2023
3 High Court of Bombay in WP/6805/2023 Order dt. 30.06.2023
