Allowed

Sanjay Ratadiya and Anr. v. Oriental Bank of Commerce and 2 Ors.

Bombay HC20 Jul 2010WP/1338/2010

Case brief

AI extract

What is this about?

High Court allowed symbolic possession of secured assets while allowing petitioners to remain in residence till September 2010. Petitioners must deposit money, file section 17 application within two weeks, and file undertaking against transfer.

What did the court decide?

Respondent permitted symbolic possession; petitioners allowed occupancy till Sept 2010; ordered deposit of sums and filing of section 17 application within two weeks.

Sanjay Ratadiya and Anr. Vs Oriental Bank of Commerce and 2… — Cheque Dishonour | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1338 OF 2010

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Sanjay Ratadiya and another. ... Petitioners Versus Oriental Bank of Commerce and others. ... Respondents

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ALONGWITH WRIT PETITION NO.1341 OF 2010

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Sangeeta Ratadiya and others. Versus

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... Petitioners

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Oriental Bank of Commerce and others. ... Respondents

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Mr. Mayur Khandeparkar with Ms. Uma S. Fadia for the petitioners. Mr. Prasad Das i/by M/s. Goenka Law Associates for respondent No.1. Mr. Dhiren H. Shah with Ms. P. Mani Bajpai for respondent No.3.

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CORAM : MOHIT S. SHAH, C.J. & S.C. DHARMADHIKARI, J.

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DATED : 20TH JULY, 2010

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P.C.

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Rule. By consent, rule made returnable forthwith.

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Learned counsel for the respondents waive service.

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In this petition under Article 226 of the Constitution of India, the petitioners have challenged the demand notice dated 23rd November, 2009 and the notice dated 18th March, 2010 (Exhibit E') to take possession of the secured assets issued by respondent No.2-authorised officer of Oriental Bank of Commerce and the letter dated 8th April, 2010 (Exhibit I') addressed by the

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Oriental Bank of Commerce. The respondent-bank is taking action under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The respondent-bank has given the impugned notice dated 18th March, 2010 to take over possession of the secured assets in exercise of the powers conferred by section 13(4)(a) of the Act. The petitioner has sought to raise various contentions which are not necessary to be enumerated for the simple reason that the petitioners have equally efficacious remedy under section 17 of the Act.

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The learned counsel for the petitioners, however, submits that the property in question is the residential flat being occupied by the petitioners and that if the respondent-bank takes over possession, the petitioners will be without room. It is submitted that the petitioners have several contentions to urge before the DRT and if the petitioners are rendered homeless, the remedy under section 17 will become infructuous.

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The learned counsel for the respondent-bank opposes the petition and relies on the decision of the Apex Court in Transcore v. Union of India and another, (2008) SCC 125 and particularly on the observations made by the Apex Court in para 74 of the above judgment. It is submitted that if possession is taken, the rights of the borrower to get the dispute adjudicated upon will not be defeated.

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It is further submitted that the respondent-bank is claiming dues amounting to Rs.642.95 lakhs as on 31st October, 2009 and, therefore, this petition may not be entertained.

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In rejoinder, the learned counsel for the petitioners states that the

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petitioners are ready and willing to deposit a sum of Rs.60 lakhs with the respondent-bank within two months out of which the first half of Rs.30 lakhs shall be deposited with the respondent-bank within one month from today and further sum of Rs.30 lakhs will be deposited within two months from today. It is submitted that the petitioners are ready to make such deposit without prejudice to their rights and contentions in the application which they will make before the DRT under section 17 of the Act.

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Having heard the learned counsel for the parties, we are of the view that the interest of justice will be served if this petition is disposed of in terms of the following terms and clarifications:

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i) It will be open to the respondent-bank to take over symbolic possession of the property in question immediately but the petitioners shall be permitted to continue to occupy the premises till 30th September, 2010.

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ii) In the meantime, the petitioners shall make an application under section 17 of the Act within two weeks from today. If such an application is made within two weeks from today as aforesaid, the DRT shall hear and decide the same in accordance with law as expeditiously as possible and preferably within two months from the date of filing the application.

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iii) The petitioners shall deposit a sum of Rs.30 lakhs with the respondent-bank within one month from today and a further sum of Rs.30 lakhs within two months from today.

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iv) The petitioners shall file an undertaking on affidavit before this court that petitioner shall not transfer or hand over the possession of the property in question to any third party.

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It is clarified that the above directions and clarifications are without prejudice to the rights and contentions of the parties and that the deposit of the amounts by the petitioners as aforesaid and the parties shall abide by the outcome of the proceedings before the DRT.

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Writ petitions stand disposed of accordingly.

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CHIEF JUSTICE

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S.C. DHARMADHIKARI, J.

Sanjay Ratadiya and Anr. v. Oriental Bank of Commerce and 2 Ors.

Case brief

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Sanjay Ratadiya and Anr. v. Oriental Bank of Commerce and 2 Ors.

Case brief

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