Hdb Financial Services Limited Thr. Its Authorized Officer v. The State Of Maharashtra Thr. Gp

1/5

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

by KANCHAN VINOD MAYEKAR Date:

2024.08.14 18:52:32 +0530 KANCHAN VINOD MAYEKAR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1080 OF 2024 HDB Financial Services Limited ..... Petitioner

VERSUS

The State of Maharashtra & Ors.

..... Respondents Mr. Charles Dsouza a/w. Mr. Padmakar Garad for the Petitioner. Mr. N. C. Walimbe, Additional G.P. a/w. Mrs. M. S. Srivastava, A.G.P. for the State.

CORAM : A.S. CHANDURKAR & RAJESH S. PATIL, JJ DATE : 12th AUGUST, 2024 P.C. :- Rule. Rule made returnable forthwith and heard learned counsel for the parties.

2.

Leave granted to the learned counsel for the petitioner to correct the description of the respondent no.3. The correction be carried out forthwith.

3.

By this writ petition, the petitioner, a creditor prays that the

2/5 order passed under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 dated 10th March 2023 be re-executed. This is in view of the fact that after the aforesaid order was executed and possession was delivered on 5th September 2023, the respondent nos. 5 to 7 thereafter tresspassed into the property on 27th October 2023. Hence, the petitioner on 30th October 2023 lodged a complaint. In this backdrop, the petitioner on 7th December, 2023 filed an application before the District Magistrate seeking delivery of the possession again. Since no steps were taken in this regard, the petitioner has approached this Court.

4.

We have heard the learned counsel for the petitioner who submits that by the judgment dated 30th June, 2023 passed in Writ Petition No. 6805 of 2023 (Kotak Mahindra Bank Ltd. & Anr. vs. State of Maharashtra & Ors.) to which one of us (Rajesh S. Patil, J.) was a party, a similar issue has been considered and decided. Directions have been issued to re-deliver possession and

3/5 it has been made clear that it would not be necessary for the creditor to initiate fresh proceedings under Section 14 of the said Act.

5.

We find that this Court in Kotak Mahindra Bank Ltd. & Anr. (supra) has considered a similar issue and has held that it would not be open for a party to dis-regard the action taken under Section 14 of the said Act and re-enter into possession. In paragraph (13) of the said order, it has been observed as under :- 13.

Considering the law laid down by the Division Bench of this Court and referred to by us above, we are unable to agree with the submission made by the learned AGP that the District Magistrate does not have the power to re-execute his own order or that he has become functus officio. If we were to take the view as propounded by the learned AGP it would lead to a complete chaos. We have no hesitation in stating that the borrowers have devised a novel, unimaginable and unsustainable modus operandi to defeat the ends of justice. It is not only the matter of physical altercation by assaulting the security guard appointed by the Petitioner Bank and breaking open the lock and seal affixed on the secured asset which is wholly illegal, but the same would also tantamount to an assault on the law and the statute itself. If, after orders are passed under section 14 for dispossession of the borrower, and the same are inter-meddled with by any person

4/5 including the borrower, the same would result in a mockery of the rule of law. In such a situation the court cannot and should not remain a mute spectator and allow the illegality to continue. The tendency of trying to overreach the law as well as the orders passed by Judicial Authorities has to be nipped in the bud right away, lest the rule of law shall suffer.

6.

In view of the aforesaid, we are satisfied that the petitioner is entitled to a similar relief as was granted in the aforesaid writ petition. Accordingly, the writ petition is allowed in terms of prayer clause (b) which reads as under :- (b) Your Lordships may be pleased to Issue a writ in the name of Mandamus or suitable direction to Respondent No.2 to 4 to restore the possession of the secured asset/s mortgaged propertie/s i.e. all the piece and parcel of the Property H B No. 18/2 situated on 2nd Floor area admeasuring 636 sq.ft. i.e. 59.11 sq. Mtrs. Built Up situated at CTS No. 2154 Sheet No. 153 having PCMC Milk at No-107601609.00 and Parperty i.e. 59.11 sq.Mts. Build up situated at CTS No. 2154 Sheet No. 153 Opposite Shani Mandir near Sai Chouck, Pimpari, Pune-411017 from Respondents No.5 to 10 in compliance of orders dated 10/03/2023 passed by the respondent No.2 in Securitisation Application No. SECU/SR/803/2023, seeking assistance under section 14 of the SARFAESI Act, 2002 within the timeframe as provided in the order.

7.

It is clarified that this direction shall be executed if there is

5/5 no legal impediment in the form of any prohibitive order issued in proceedings filed by the respondent nos. 5 to 7. 8.

Rule is made absolute in the aforesaid terms. No costs. 9.

List this matter on 9th September, 2024 under the caption "For Compliance".

[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]