Bombay High Court
Shriniwas Ramdas Dubas Prop. Of M/S ... vs Bank Of Maharashtra And Anr on 11 March, 2025
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2025:BHC-AS:11482-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.19402 OF 2024
1. Mr. Shriniwas Ramdas Dubas, ]
Proprietor of M/s. Shriniwas Ramdas Dubas ]
Having address at Plot No.129 MIDC, ]
Akkalkot Road, Solapur - 413 006. ]
2. Mrs. Meera Shriniwas Dubas ]
R/at Plot No.129 MIDC, ]
Akkalkot Road, Solapur - 413 006. ] .. Petitioners
Versus
1. Bank of Maharashtra, ]
Having Head Office at Jule Solapur, ]
Solapur - 413 005. ]
Having Branch Office at Ashok Chowk, ]
Solapur - 413005. ]
2. The Authorised Officer, ]
Bank of Maharashtra, ]
Having Branch Office at Ashok Chowk, ]
Solapur - 413 006. ] .. Respondents
Mr. Mandar Soman with Mr. Amarnath Boddul, Advocates for the
Petitioners.
Mr. Subir Kumar with Mr. Valentine Mascarenhas, Advocates for the
Respondents.
CORAM : A.S. CHANDURKAR &
M.M. SATHAYE, JJ
DATE : 11TH MARCH 2025.
ORAL JUDGMENT : { Per A.S. Chandurkar, J. }
1. Rule. Rule made returnable forthwith and heard learned counsel for
the parties. The challenge raised in this writ petition is to the order dated
20th December 2024 passed by the learned Incharge Presiding Officer,
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Debts Recovery Tribunal, Pune, having Camp at Nagpur, by which Interim
Application No.3124 of 2024 (incorrectly mentioned as Interim
Application No.3126 of 2024) came to be disposed of as infructuous.
2. The learned counsel for the petitioners invited attention to the
prayers made in Interim Application No.3124 of 2024 and submitted that
besides seeking stay of the execution of the notice issued by the Court
Commissioner on 6th December 2024 seeking to take possession of the
secured asset, there were other prayers made in the interim application
including one for restoration of possession in case it was found that the
possession was illegally taken. Without considering the entire interim
application and only by considering the pursis filed by the respondents
stating that possession of the secured asset was taken, the interim
application was disposed of as infructuous. It is thus submitted that in
breach of principles of natural justice and without considering all the
prayers made in the interim application, it has been disposed of as
infructuous. Requiring the petitioners to avail the statutory remedy of
approaching the Debts Recovery Appellate Tribunal in this regard would
be onerous for the reason that the petitioners would be required to
challenge an order that did not even consider the prayers made in the
interim application. He therefore seeks to invoke the extra-ordinary
jurisdiction under Article 226 of the Constitution of India.
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3. Per contra, the learned counsel appearing for respondent no.1 raised
an objection to the maintainability of the writ petition as the remedy of
challenging the impugned order by approaching the Debts Recovery
Appellate Tribunal was available. According to him, without invoking such
remedy the petitioner has approached this Court. There was no
exceptional case made out warranting interference. Since the
Securitisation Application preferred by the petitioners was pending, the
prayers that remained undecided in the interim application could be
decided in the Securitisation Application. He therefore submits that the
interim application was rightly disposed of as infructuous.
4. Having heard the learned counsel for the parties and having perused
the documents on record, we are inclined to exercise discretion in favour
of the petitioners and entertain the writ petition. In Interim Application
No.3124 of 2024, the following prayers were made :
"16. Therefore, it is most humbly prayed that,
(a) The present application may kindly be allowed.
(b) The Hon'ble DRT may kindly stay the
implication and execution of the notice issued by
the Court Commissioner dated December 06.
2024.
(c) The Hon'ble DRT may kindly stay implication
and execution of all the section 13(2) notices till
the present matter is disposed off.
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(d) The Hon'ble DRT may kindly stay implication
and execution of all the section 13(4) notices till
the present matter is disposed off.
(e) The Hon'ble Tribunal may be pleased to quash
and set aside the order passed by the Chief
Judicial Magistrate, Solapur dated November
16, 2024.
(f) The Hon'ble Tribunal may be pleased to declare
that no valid security interest is created by the
Defendants in the alleged mortgaged property
mentioned in the schedules of main SA, till the
final disposal of the present matter.
(g) The Hon'ble Tribunal may kindly immediately
restore the possession of the properties
mentioned in the Schedule hereinbelow, if the
possession of the property mentioned in
Schedule of main is taken illegally.
(h) This Hon'ble Tribunal may kindly award to the
applicants the costs for filing of the present IA
along with Advocate fees from the defendant.
(i) Any other just and equitable orders in the
interest of justice may kindly be passed."
5. When Interim Application No.3124 of 2024 was considered on 20 th
December 2024, the learned Incharge Presiding Officer passed the
following order :-
20.12.2024 HEARING THROUGH V.C.
The Ld. Counsel for both sides are
present.
The Ld. Counsel for the respondent had
submitted Pursis mentioning therein
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outstanding loan amount as on date and
has filed panchanama with regard to
taking possession of the secured asset in
view of the possession notice issued by
the Court Commissioner, Solapur dated
06.12.2024.
In that view of the matter, I.A.
No.3126/2024 (incorrectly mentioned as
I.A. No.3124/2024) is hereby disposed of
as being infructuous.
Call explanation from the concerned
Court Commissioner why he has taken
possession of the secured asset when the
matter was being heard and sub-judice
before this Tribunal.
Put up submission of report by the
concerned Court Commissioner and
completion of pleadings before Registrar
on 10.02.2025"
6. Perusal of Interim Application No.3124 of 2024 (incorrectly
mentioned as I.A. No.3126/2024) and the impugned order passed
thereon would indicate that besides seeking stay to the implementation
and execution of the notice issued by the Court Commissioner proposing
to take over possession, prayer clauses (f) and (g) sought adjudication as
to whether a valid security interest was created in the mortgaged property
and restoration of possession of the properties, if the same was illegally
taken, was prayed for. It is evident from the impugned order that only by
accepting the pursis filed by the respondent-Bank that possession has been
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taken; the interim application in its entirety has thus disposed as
infructuous. There is no consideration of prayer clauses (f) and (g) in
Interim Application No.3124 of 2024. It would have been a different
matter if after considering the aforesaid prayers, the interim application
would have been rejected. That however is not the case. It is thus obvious
from the record that the learned Incharge Presiding Officer did not
consider the interim application with all its prayers.
The matter can be seen from another angle. The learned Incharge
Presiding Officer had called for explanation from the concerned Court
Commissioner as to why possession was taken when the matter was
subjudice before the Tribunal. This would indicate, prima facie, that a
grievance was raised with regard to illegal manner in which possession
was taken. If those observations are seen in the context of prayer clause
(g) of the Interim Application No.3124 of 2024 (incorrectly mentioned as
I.A. No.3126/2024), it becomes clear that the petitioners were seeking
restoration of possession taken illegally. It was therefore necessary for the
Tribunal to have at-least considered the said prayers on their own merits.
Without doing so, the entire application has been dismissed as
infructuous.
7. It is no doubt true that an alternate remedy of approaching the
Debts Recovery Appellate Tribunal is available. However, only on that
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count the writ petition cannot be held to be not maintainable. We further
find that the petitioners have made out an exceptional case indicating
non-consideration of the entire application on merits, thus resulting in
breach of principles of natural justice. We find that this is a fit case for this
Court to exercise discretion under Article 226 of the Constitution of India.
8. For aforesaid reasons, the writ petition is allowed in terms of prayer
clause (J), which reads as under :-
"(J) This Hon'ble High Court may be pleased to set aside
the order dated 20th December 2024 passed by the
DRT, Pune and may direct the Hon'ble DRT Pune to
hear Interim Application No.3124 of 2024 (incorrectly
mentioned as Interim Application No.3126 of 2024)
for restoration filed by the petitioners may be heard at
the earliest."
9. The interim application shall be considered and decided on its own
merits and in accordance with law. The observations made in this order
are only for the purposes of adjudicating the challenge to the impugned
order. It is clarified that this Court has not considered the other prayers
made in the writ petition and all issues in that regard are kept open. Rule
is made absolute in the above terms.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
Digitally
SNEHA
SNEHA ABHAY 905-WP-19402-2024.doc
ABHAY DIXIT
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DIXIT Date:
2025.03.12
10:22:20
+0530
