Disposed

Rohanlal Aroor Chand Kalia v. Sujay Savant and Anr.

Bombay HC7 Apr 2010WP/638/2010

Case brief

AI extract

What is this about?

This court disposed of a writ petition challenging cooperation society recovery proceedings and a Section 149 Cr.P.C. notice. The court held Article 226 is not appropriate for possession disputes, refused to examine the bank's rights, and extended prior interim protection for two weeks without deciding the merits.

What did the court decide?

Interim protection granted earlier remains operative for two weeks. The writ petition is disposed of without examining the rights of the petitioner in respect of the flat.

Rohanlal Aroor Chand Kalia Vs Sujay Savant and Anr. — Banking and Recovery | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 638 OF 2010

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Office Notes, Office Court's or Judge's orders. Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders

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Mr.S.S.Patwardhan i/b L.R Castelino, for the petitioner. Mrs M.M.Deshmukh, APP, for the respondent-State.

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Mr Harish R Pawar, for respondent no.3Bank.

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CORAM: D.B.BHOSALE AND A.R.JOSHI, JJ. DATE : 07/04/2010

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PC:

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Heard Mr Patwardhan, learned

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counsel for the petitioner, Mrs. Deshmukh, learned APP for the State and Mr Pawar, learned counsel for respondent no.3-bank.

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In this writ petition, the petitioner has made the following prayers:-

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(a) this Hon'ble Court be pleased to issue appropriate writ, order or direction to respondent no.1 and respondent no.3 to exercise the powers conferred under the Act and Rule and not contrary to the orders passed by this Hon’ble Court in Writ Petition No.6836 of 2008;

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(b) this Hon’ble Court be pleased to issue appropriate writ, order or direction in respect of Notice issued by respondent no.2 under section 149 of Code of Criminal Procedure, 1973 upon the petitioner and his family members, be quashed and set aside and further issue appropriate writ, order or direction to act upon the order passed by the learned Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai dated 22.12.2009 expeditiously;

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(c) this Hon'ble Court be pleased to issue appropriate writ, order or direction to respondent no.1 to remove the seal unlawfully put by him upon Flat No.58, and Flat No.59, situated at Sai Nagar CHS Ltd,Yari Road,Versova,Andheri (W),Mumbai and hand over the possession to the petitioner;

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(d) this Hon’ble Court be pleased to issue appropriate writ, order or direction to respondent no.2 to register an F.I.R against respondent no.1 and respondent no.3 to respondent no.17 and respondent no.20 to respondent no.21.”

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Though the petitioner made the aforesaid prayers in the petition, learned counsel for the petitioner addressed the court only on prayers clause (a) and ( c ). From bare perusal of the prayers (a) and (c), it is clear that under the guise of this writ petition, the petitioner seeks to protect his possession of the flat against which respondent no.3-Bank is likely to proceed

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in pursuance of the recovery certificate issued by the competent authority under section 101 of the Maharashtra Cooperative Societies Act. Insofar as prayer (b) is concerned, by issuing notice under section 149 of the Code of Criminal Procedure, police are only expecting the petitioner to maintain law and order and to avoid commission of any cognizable offence. The learned counsel for the petitioner submits that there is no question of the petitioner committing any cognizable offence, as long as the respondent-Bank does not disturb his possession of the flat without following the due process of law. If the petitioner desires to protect his possession of the flat and feels that the respondent-Bank is likely to dispossess him without following the due process of law, he has remedies available in law. He can institute appropriate proceedings for protecting his possession. This petition under Article 226 of the Constitution of India is not an

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appropriate remedy to seek prayers (a) and ( c ) in the petition. The notice under section 149 of Cr.P.C., in our opinion, will not affect the rights of the petitioner, if any, in respect of the flat. Therefore, we are not inclined to entertain challenge to the notice under section 149 of Cr.P.C With these observations, the writ petition is disposed of. The disposal of the petition shall not preclude the petitioner from approaching the appropriate forum for appropriate relief in respect of the flat in their possession. The interim protection, granted earlier, shall remain operative for a period of two weeks from today. While granting the protection, we shall not be understood to have examined the rights of the petitioner in respect of the flat.

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(A.R.JOSHI, J.) (D.B.BHOSALE, J.)

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Rohanlal Aroor Chand Kalia v. Sujay Savant and Anr.

Case brief

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Rohanlal Aroor Chand Kalia v. Sujay Savant and Anr.

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