Gujarat High Court
Cambay Sez Hotels Pvt Ltd vs Board Of Approval For Special ... on 23 February, 2021
Bench: Mr. Justice Nath, Ashutosh J. Shastri
C/LPA/913/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 913 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 10376 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 913 of 2020
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CAMBAY SEZ HOTELS PVT LTD
Versus
BOARD OF APPROVAL FOR SPECIAL ECONOMIC ZONE
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Appearance:
MR ASPI KAPADIA for MR ZAHIRUDDIN S SAIYED(8343) for the Appellant
No. 1
for the Respondent(s) No. 1,3
MR ABHISHEK M MEHTA(3469) for the Respondent(s) No. 4
MR KSHITIJ AMIN for the Respondent(s) No. 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 23/02/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1 We have heard Mr. Aspi Kapadia, learned
counsel for Mr. Zahiruddin S. Saiyed, learned advocate
appearing for the appellant, Shri Abhishek M. Mehta,
learned counsel for the respondent No.4 and Mr. Kshitij
Amin, learned counsel for the respondent No.2.
C/LPA/913/2020 ORDER
2 This appeal under Clause 15 of the Letters
Patent has been preferred by the unsuccessful writ
petitioner assailing the correctness of the judgment and
order dated 20.04.2020 passed in Special Civil
Application No.10376 of 2018 whereby the learned Single
Judge for reasons recorded in the judgment dismissed the
petition.
3 The present appellant and also the original writ
petitioner, who was earlier registered as M/s. Dahej
Hospitality Private Limited subsequently substituted as
M/s. Cambay SEZ Hotels Private Limited was a co-
developer under the provisions of The Special Economic
Zones Act, 2005 (for short, "2005 Act"). The appellant
had taken loan from Small Industries Development Bank
of India (for short, "SIDBI"). On account of default in
payment of the said loan, the SIDBI initiated proceedings
under Section 13 of The Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for short, "SARFAESI Act").
C/LPA/913/2020 ORDER
The auction proceedings were held in which the
respondent No.4 along with the four directors of
respondent No.4 company participated, the bid was
accepted and a Sale Certificate dated 07.01.2017 was
issued incorporating that the sale was in favour of [1]
Shri Jignesh Uttambhai Thakkar, [2] Shri Hemant
Tribhuvanbhhai Patel, [3] Shri Daxeshbhai B. Patel and
[4] Smt. Vishaka Vipul Thakkar (promoter directors of
proposed SPV viz. Shreekunj Hospitality Private Limited)
(the purchaser).
4 This Sale Certificate is dated 07.01.2017 signed
by the Authorized Officer of the bank. Thereafter another
Sale Certificate is said to have been issued on
20.01.2017, in which the purchaser is shown as
Shreekunj Hospitality Private Limited (the purchaser).
The above fact is being mentioned on account of an
argument advanced by Mr. Kapadia relating to the two
sale certificates. The Debts Recovery Tribunal while
disposing of the Securitization Application No.84 of 2014
passed final judgment on 15.07.2019.
C/LPA/913/2020 ORDER
5 Mr. Kapadia has raised an argument that the
Debts Recovery Tribunal had held the second Sale
Certificate dated 20.01.2017 to be of no value in the eye
of law and that the Sale Certificate dated 07.01.2017
would prevail over the subsequent sale certificate. The
order dated 15.07.2019 according to learned counsels for
the parties is challenged by way of appeals before the
Debts Recovery Appellate Tribunal and the appeals are
pending. In the meantime, the auction purchaser applied
before the Board of Approval under the 2005 Act for
being recognized as a co-developer in place of the writ
petitioner - appellant. The Board of Approval vide their
resolution of Item No.82.9 in the meeting dated
04.04.2018 cancelled the co-developer agreement with
the petitioner - appellant and substituted it by the
present auction purchaser - respondent No.4. It is this
decision of the Board of Approval which was challenged
by way of the Special Civil Application No.10376 of 2018.
The learned Single Judge after examining the complete
material on record and the submissions advanced did not
C/LPA/913/2020 ORDER
find any merit in the petition.
6 Admittedly the auction under the SARFAESI
Act had been settled in favour of the auction purchaser,
be it the Directors of the respondent No.4 company or
the company would not make any difference. The fact
remains that the petitioner - appellant having lost right,
title and interest over the immovable and movable
properties covered under the sale, could not have
continued as co-developer, dismissed the writ petition.
7 Before us, Mr. Kapadia has vehemently sought
to argue that the Debts Recovery Tribunal in its order
dated 15.07.2019 having held that the second sale
certificate was no certificate in the eye of law and only
the first sale certificate will prevail, as such the decision
of the Board of Approval to acknowledge and recognize
the respondent No.4 as co-developer was bad in law.
According to him, it is the four directors only, who could
have been acknowledged or accepted as a co-developer,
but not the company.
C/LPA/913/2020 ORDER
8 In our considered opinion, this argument does
not lie in the mouth of the present appellant - petitioner,
who admittedly was defaulter and its assets both movable
and immovable had been auctioned by the bank in the
proceedings under the SARFAESI Act and such auction
having been confirmed and sale certificate having been
issued, whether it is the four directors of the company
and the name of the company also finds place in the first
sale certificate or it is company as per the second sale
certificate, would not make any difference to the present
writ petitioner - appellant. The order of the Debts
Recovery Tribunal and any challenge to the auction
proceedings, if ultimately the petitioner - appellant
succeeds would have its own result and outcome, but so
long as the auction stands confirmed, no relief or benefit
can be granted to the appellant - petitioner.
9 Thus, we do not find any infirmity in the order
passed by the learned Single Judge. On the above ground
alone, the appeal would be liable to be dismissed. The
C/LPA/913/2020 ORDER
learned Single Judge has dealt with in much greater
detail, the other arguments also.
10 Accordingly, we dismiss this appeal as being
devoid of any merit.
11 Consequently, the connected Civil Application
stands disposed of.
(VIKRAM NATH, CJ)
(ASHUTOSH J. SHASTRI, J)
P. SUBRAHMANYAM
