Dismissed

Klastar Hospitalities Private Limited v. New India Co-Operative Bank Limited and Ors.

Bombay HC13 Aug 2013WP/7293/2013

Case brief

AI extract

What is this about?

The High Court examined a writ petition seeking stay on bank possession actions and possession orders by the District Magistrate. The Court dismissed the writ as not maintainable since the petitioner had approached the Debt Recovery Tribunal (DRT) which was hearing the matter immediately next day.

What did the court decide?

The writ petition was dismissed; the interim protection granted earlier was vacated; all contentions kept open.

Klastar Hospitalities Private Limited Vs New… — Civil Procedure and Limitation | Bombay HC (2013)

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(WP7293.13)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7293 OF 2013

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Klastar Hospitalities Private Limited …. Petitioner.

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V/s

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New India Co-operative Bank Limited and Others

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….. Respondents.

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Mr. A.M. Joshi with Mr. V.K. Bodhare for the Petitioner. Mr. P.K. Dhakephalkar, Senior Counsel with Mr. Vatsal Shah i/b Nitin Muley for Respondent No.1.

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Mrs. M.P. Thakkar, AGP for Respondent Nos. 3 to 5.

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CORAM: V. M. KANADE & K. R. SHRIRAM, JJ.

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DATE: 13^th August, 2013.

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P.C.:-

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By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking an appropriate writ, order and direction, restraining Respondent No.1 – Bank from taking any further steps pursuant to notice under section 13(2) dated 1/3/2013 including taking physical

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(WP7293.13)

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possession from the Petitioner till the final disposal of SA No.90/2013. Petitioner is also seeking an appropriate writ, order and direction restraining Respondent Nos. 3 to 4 from taking physical possession of the Petitioner's property pursuant to the order dated 29/7/2013 passed by Respondent No.3 – District Magistrate.

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The Petitioner had moved this Court for production and for urgent ad-interim relief on 12/8/2013 at 5.00 P.M. It was contended that pursuant to the order passed by the District Magistrate dated 29/07/2013, Respondent – Bank was about to take physical possession of the property. It was submitted that the application filed by the Petitioner before DRT was to come up for hearing on 14/08/2013. However, the DRT had not granted any interim protection. The Petitioner, therefore, was constrained to approach this Court. Under these circumstances, on 12/08/2013 this Court had directed the parties to maintain status quo and further directed that the matter should be placed today on the Board. Petitioner was directed to communicate the order to Respondents by sending Fax.

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Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of Respondent No.1 - Bank has submitted that a caveat was filed by the Bank. However, he was unable to state whether the caveat was served on the Petitioner. He

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(WP7293.13)

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has raised a preliminary objection regarding maintainability of the Petition. He submitted that Petitioner had moved the DRT and the matter was kept for hearing tomorrow. He submitted that it was not open for the Petitioner to move this Court, after they had approached the DRT.

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In our view, there is much substance in the objection raised by the learned Senior Counsel appearing on behalf of Respondent No.1 – Bank. It is an admitted position that the application filed by the Petitioner is kept before DRT on 14/08/2013. Petitioner, therefore, is not entitled to approach this Court, he having approached DRT which is the alternate remedy available to him. It is always open for the Petitioner to seek interim relief from the DRT when the matter is heard tomorrow.

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The learned Counsel appearing on behalf of the Petitioner submitted that interim protection granted by this Court may be continued till pendency of the matter before the DRT. We are not inclined to extend the interim protection since the Petitioner has availed the alternative remedy which is available to him.

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Without expressing any opinion on the merits of the case, we do not think that this is a fit case for us to entertain the Writ Petition particularly when the matter is now kept

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(WP7293.13)

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before the DRT tomorrow. Hence, on that ground, Writ Petition is dismissed. Interim protection granted by this Court is vacated. All contentions of both sides are kept open.

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(K.R. SHRIRAM, J.) (V.M. KANADE, J.)

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B.D. Pandit

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Klastar Hospitalities Private Limited v. New India Co-Operative Bank Limited and Ors.

Case brief

What is this about?

What did the court decide?

Klastar Hospitalities Private Limited v. New India Co-Operative Bank Limited and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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