Disposed

Ambit Finvest Pvt. Ltd. v. Shahi Zaika Family Restaurant and Ors.

Bombay HC5 Feb 2024WP/8261/2023

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition seeking quashing of EOW notices on a secured asset. It directed the petitioner to approach the MPID Court for raising the attachment, noting the appropriate forum for attachment levied under the MPID Act. The Court requested the MPID Court to decide the matter expeditiously.

What did the court decide?

The petition is disposed of by permitting the petitioner to file an application for raising the attachment before the MPID Court within two weeks.

Ambit Finvest Pvt. Ltd. Vs Shahi Zaika Family Restaurant… — Banking and Recovery | Bombay HC (2024)

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13.wp.8261.2023.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.8261 OF 2023

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Ambit Finvest Private Ltd. .. Petitioner

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Versus

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Shahi Zaika Family Restaurant & Ors. .. Respondents

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Digitally signed by UTKARSH UTKARSH KAKASAHEB KAKASAHEB BHALERAO BHALERAO Date: 2024.02.06 14:32:16 +0530

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Mr.Sanjeev Sawant i/b Murlidhar Kale, Advocates for the Petitioner.

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Mr.A.I. Patel, Addl. G.P. a/w M.S. Bane, AGP for State/Respondent No.5.

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Mr.Anand Mudliar , Senior Police Inspector, EOW, MiraBhayander, Vasai-Virar Police Commissioner Office, is present in Court.

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CORAM: B. P. COLABAWALLA & SOMASEKHAR SUNDARESAN, JJ. DATE : FEBRUARY 05, 2024

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P. C.

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1. The above Writ Petition is filed seeking the following

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reliefs:-

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"(a) Rule be issued;

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(b) That, this honourable court be pleased to pass appropriate order or direction thereby directing the respondent no.4 Society to issue NOC to the petitioner to transfer/sale the secured asset i.e. Shop No.13, Ground floor, Building No.J 83 and 84, Happy Home EstateIII, Co-operative Housing Society, Poonam Sagar Complex, Mira road East, Joggers Park Road, 401 107.

FEBRUARY 05, 2024

Utkarsh

Page 1 of 4

13.wp.8261.2023.doc

(c) That this Hon'ble Court be pleased to pass appropriate directions/order thereby quash and set aside the notices dated 21.09.2021, 15.01.2020 and 19.12.2020 issued by the Respondent No.5 to the Respondent No.4 i.e. to the Happy Home Estate Co-op. Hsg. Society and further be pleased to declare the said notices are bad, contrary to law and illegal in view of section 26E of the SARFAESI Act, 2002;"

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2. At the outset, it is pointed out to us that there is typographical mistake in prayer clause (c) and the date 21^st September, 2021 should be read as 21^st September, 2019. The same is duly noted.

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3. We find that prayer clause (c) is the main prayer and the prayer clause (b) is the consequential prayer. As far as prayer clause (c) is concerned, what the Petitioner seeks is to quash and set aside the notices dated 21.09.2019, 15.01.2020 and 19.12.2020 issued by the Respondent No.5 to Respondent No.4, instructing it not to further transfer the property which forms the subject matter of the Petition. The property in question is Shop No.13, Ground Floor, Building No.J 83 and 84, Happy Home Estate-III Co-operative Housing Society, Poonam Sagar Complex, Mira Road East, Joggers Park Road, 401107 (for short the " secured asset ").

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4. It is the case of the Petitioner that these notices have been wrongly issued by the EOW (Respondent No.5) to Respondent No.4 on

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Utkarsh

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Page 2 of 4 FEBRUARY 05, 2024

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13.wp.8261.2023.doc

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the basis that Government of Maharashtra has issued a notification dated 14^th June, 2023 attaching the secured asset under the provisions of the Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 (for short " the MPID Act, 1999 "). It is the Petitioner's case that they being secured creditors and their mortgage being registered under CERSAI [as contemplated under Section 26B of the SARFAESI Act, 2002], the dues of the secured creditors, by virtue of Section 26E, get preference over all other dues.

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5. We have heard the learned counsel appearing on behalf of the Petitioner. We have also heard the learned AGP. We find that since the attachment is levied by the Government under the provisions of the MPID Act, 1999 it would be appropriate for the Petitioner to approach the concerned MPID Court and seek raising of the attachment. If this is done, then necessarily all notices issued by the EOW would automatically stand withdrawn.

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6. In these circumstances, we dispose of the above Writ Petition by permitting the Petitioner to file an Application for raising the attachment on the secured asset, namely Shop No.13, Ground Floor, Building No.J 83 and 84, Happy Home Estate-III, Co-operative

Utkarsh

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FEBRUARY 05, 2024

13.wp.8261.2023.doc

Housing Society, Poonam Sagar Complex, Mira road East, Joggers Park Road, 401107, before the concerned MPID Court within a period of 2 weeks from today.

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7. If such an Application is filed within the time stipulated, we would request the concerned MPID Court to decide the Application filed by the Petitioner herein as expeditiously as possible and in any event within a period of 4 weeks from the date of filing of the said Application.

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8. We have made this request specifically keeping in mind that the secured creditors ought to be allowed to realize their dues as expeditiously as possible keeping in mind the object and purpose of the SARFAESI Act.

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9. The Writ Petition is accordingly disposed of. However, there shall be no order as to costs.

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10. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

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[SOMASEKHAR SUNDARESAN,J.] [B. P. COLABAWALLA, J.]

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Page 4 of 4 FEBRUARY 05, 2024

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Utkarsh

Ambit Finvest Pvt. Ltd. v. Shahi Zaika Family Restaurant and Ors.

Case brief

What is this about?

What did the court decide?

Ambit Finvest Pvt. Ltd. v. Shahi Zaika Family Restaurant and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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