Mr. Pankaj Manjunath Shetty And ANR v. Anand Rathi Global Finance Ltd

JPP 1 902-903-904-906 WP 1230.23 & connected.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1230 OF 2023 Vicky Suresh Sharma and Anr.

... Petitioners V/s.

Anand Rathi Global Ginance Ltd. & Ors.

... Respondents and WRIT PETITION NO. 1232 OF 2023 Aditya Tulsidas Pranjape and Ors.

... Petitioners V/s.

Anand Rathi Global Finance Ltd. & Ors.

... Respondents and WRIT PETITION NO. 1296 OF 2023 Padmakar Bhaskar Jamsandekar and Ors.

... Petitioners V/s.

Anand Rathi Global Finance Ltd. & Ors.

... Respondents and WRIT PETITION NO. 1335 OF 2023 Pankaj Manjunath Shetty and Anr.

... Petitioners V/s.

Anand Rathi Global Finance Ltd. & Ors.

... Respondents and WRIT PETITION (St.) NO. 2863 OF 2023 Dilip Santra and Ors.

... Petitioners V/s.

Anand Rathi Global Finance Ltd. & Ors.

... Respondents

JPP 2 902-903-904-906 WP 1230.23 & connected.doc Mr. Aditya Thakkar with Yogesh P. Rane i/b. Abhishek Walwaikar for the Petitioners in WP 1230/23, WP 1232/23 and WP 1296/23 Mr. Hemant Ghadigaonkar for the Petitioners in WP 1335/23 and WPSt. 2863/23 Mr. Charles De'souza with Ms. Apoorva Kulkarni i/b. M/s. V. Deshpande & Co. for the Respondents CORAM : NITIN JAMDAR & ABHAY AHUJA, JJ.

DATE : 01 FEBRUARY 2023 P.C. :- Writ Petition (St.) No. 2863 of 2023 is not on board. Same is taken on board by way of praecipe.

2.

Heard the learned Counsel for the parties.

3.

The Petitioners are aggrieved by the action taken by the Respondent - Secured Creditor in approaching the Executive Magistrate under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI). The Petitioners had earlier filed Writ Petition No. 7562 of 2021 and other connected matters challenging the action taken by the Respondents under Section 14 of the SARFAESI Act. The Division Bench of this Court scrutinizes the matter as pointed out by the Respondents with the following objectives as reflected in paragraph 42 :-

JPP 3 902-903-904-906 WP 1230.23 & connected.doc "42. The endeavor of this Court has been to ensure that the financial misdeeds in relation to the Project are exposed, the money trail unearthed and the culprits are brought to justice in accordance with law. All observations of this Court are only prima facie in nature. The rival contentions of the parties have not been adjudicated upon by this Court and all rights and contentions in that regard are expressly kept open to be adjudicated upon in appropriate proceedings at the appropriate stage."

4.

Thereafter the Respondent - Secured Creditors have moved the District Magistrate under Section 14 of the SARFAESI Act, the Petitioners are before us by way of these Petitions. 5.

The learned Counsel for the Petitioners sought to contend that the Petitions be entertained as there is a fraud committed by the Respondent - Developers and sought to rely upon the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation v/s. Registrar of Trade Marks, Mumbai and Ors.1. 6.

Having considered the purpose and object of the earlier order passed by this Court and having considered the settled position of law as laid down by the Supreme Court in the cases governing SARFAESI Act, we are of the opinion that the Petitioners will have to get their grievances redressed before the Debts Recovery Tribunal. The Hon'ble Supreme Court in the case of Union Bank of India v/s. (1998) 8 SCC 1

JPP 4 902-903-904-906 WP 1230.23 & connected.doc Satyawati Tandon and Ors.2 after taking review of the earlier judicial pronouncements has held that since the SARFAESI Act is a complete Code, the writ jurisdiction ought not to be exercised. 7.

As regards the grievance made by the learned Counsel for the Petitioners that the attempt of the Respondent - Secured Creditor to apply to the District Magistrate under Section 14 of the SARFAESI Act is in violation of the status-quo is concerned, the learned Counsel for the Respondent - Secured Creditors pointed out that the order of status-quo was upon certain conditions. The learned Counsel for the parties have sought to debate before us whether these conditions are in fact satisfied or not. This is another area of factual adjudication that has arisen before us. Considering the totality of the circumstances and the position of law as above, we are of the opinion that appropriate course of action would be to defer the action of the Respondents for some time so that the Petitioners can agitate their grievance before the Debts Recovery Tribunal. 8.

Accordingly, we dispose of the Writ Petitions directing the Respondent - Secured Creditors not to take physical possession of the flats involved in the Petition for a period of four weeks from today. All contentions of the parties including the one raised in the Petition are kept open to be agitated before the Debts Recovery Tribunal.

AIR 2020 SC 3413

JPP 5 902-903-904-906 WP 1230.23 & connected.doc 9.

The Writ Petitions are disposed of in the above terms. 10.

We make it clear that the protective order that we have passed will apply only in respect of the Petitioners who are before us. ABHAY AHUJA, J.

NITIN JAMDAR, J.

by JYOTI PRAKASH PAWAR Date: 2023.02.04 11:12:47 +0530 JYOTI PRAKASH PAWAR