Dismissed

Bec Fertilizers Limited v. Bank of Baroda

DRT26 Dec 2023SA/226/2023

Case brief

AI extract

What is this about?

This order dismissed the applicant’s special application challenging the District Magistrate’s direction to the Mamlatdar to take physical possession of secured assets from the Bank. The court held the 14-day notice served within 10 days of receipt valid.

What did the court decide?

The special application and the pending interim application were dismissed. The file was closed and consigned to the record room.

Bec Fertilizers Limited versus Bank of Baroda — Contract and Commercial Disputes | DRT (2023)

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SA No.226 of 2023

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26/12/2023	Ex. No.	Before Presiding Officer Dr. Rekha G. Dhakar, DRT-1, Mumbai. *Order in SA 226 of 2023* *BEC Fertilizers Limited and Ors. Vs.* *Bank of Baroda*	Next date
		Advocate Saloni K. i/b Meraki Chamber appeared for the Applicant. Advocate Nilesh Bamne i/b M/s. A. R. Bamne & Co. appeared for the Respondent. 1. By way of the present SA, the Applicants prayed to set aside the action of the Respondent and the Mamlatdar for taking physical possession of the secured assets i.e. Plots of land bearing Survey Nos.25/P, 26/P, 27A/P, 28A/P, 28B/P, 29/P, 30A/P, 30B/P, 31A/P, 31B/P, 32A/P, 32B/P & 34/P, Plot Nos.912 and 912A admeasuring 84901.17 sq. mtrs (tentative) area within the limit of village Dadheda, GIDC Estate, Jhagadia, District Bharuch, Gujarat State (for short “the property in question”) on 17.11.2023 and restore the possession of the property in question to the Applicants.
		2. Ld. Counsel for the Applicants has submitted that the Ld. DM vide order dated 27.09.2023 appointed the Mamlatdar/ Tehsildar as the Commissioner to take the possession of the secured assets and handover the same to the Respondent and also directed

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SA No.226 of 2023

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the Respondent to give a notice of 14 days of such date for taking physical possession. He submits that the Respondent failed to give the exact date of possession while taking possession of the property in question on 17.11.2023 therefore, the said possession proceeding is liable to be quashed. 3. In support of his contention, Ld. Counsel for the Applicants has relied upon the judgment of Hon’ble High Court of Allahabad in Shipra Hotels Limited and Another Vs. State of U.P. and Others, (2023) 156 ALR 375, and also High Court of Gujarat at Ahmedabad in Consumer Protection and Analytic Committee Vs. State of Gujarat & Ors., Writ Petition (PIL) No.68 of 2012.

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4. According to Ld. Counsel for the
Respondent in the SARFAESI Act, 2002 there
is no time period provided for the
implementation/execution of the order under
Section 14 of the Ld. DM. He also contended
that admittedly, possession notice was already
been issued to the Applicant and the Applicant
was duly been informed that in case Applicant
failed to pay the dues then the possession of the property in question shall be taken thus, he
submitted that the present SA may be
dismissed.

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SA No.226 of 2023

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5. Heard the rival submissions of the parties and perused the record.
6. Record reveals that Ld. District
Magistrate, Bharuch vide order dated
27.09.2023 allowed the Application under
Section 14 of the SARFAESI Act, 2002 filed by
the Respondent Bank and directed the
Tahsildar to take possession of the property in question after giving 14 days notice regarding intention to take possession to the owner of the property in question and also to affix notice at the visible part of the property in question.
7. In compliance of the order of the Ld. DM
dated 27.09.2023, the Tahsildar sent a
letter/notice dated 10.10.2023 to the Applicant
whereby the Tahsildar informed the Applicant about passing of the order dated 27.09.2023
and also informed that he will take possession of the property in question and handover the
same to the Authorized Officer of the
Respondent at any day after expiry of 14 days
from receipt of the said letter/notice dated
10.10.2023. The said letter was duly sent to the
Applicants and same was duly received by the
Applicants on 16.10.2023 (Exhibit F-2 to
Exhibit F-4 of the reply filed by the Respondent Bank). Further, the same was also affixed at the

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SA No.226 of 2023

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conspicuous part of the property in question. However, the neither the Applicants handover the possession of property in question nor obtained any stay order even after lapsed of 14 days from receipt of notice. Accordingly, the Tahsildar/Mamlatdar, Bharuch took physical possession of the property in question on 17.11.2023 and handed over the same to the Authorized Officer. Thus, before taking possession, the Applicants were duly been informed. 8. Insofar as objection of the Applicants that exact date of possession not mentioned in the possession notice is concerned, admittedly, in the possession notice, it is clearly mentioned that after lapse of 14 days from the receipt of notice, the possession would be taken. The possession notice was received by the Applicants on 16.10.2023 but after receiving the possession notice, the Applicants did not pay the dues thus, on 17.11.2023 possession was duly taken just after 15 days. Therefore, I do not find any illegality in the action taken by the Respondent Bank. 9. As far as judgment of Hon’ble Gujarat High Court in the matter of Consumer Protection and Analytic Committee (supra) is

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SA No.226 of 2023

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concerned, in the said case, the Hon’ble High
Court has observed that: “7. We are therefore, of the view that whenever an application under Section 14 of the Securitisation Act is filed, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, should first affix a notice of taking possession on a conspicuous part of the property in question and should also give a notice to the person who is in actual possession thereof indicating its intention of taking possession after a period of a fortnight so that in case of any fraud or collusion at the instance of either the debtor or the secured creditor,an innocent person is lawful possession may not be thrown out of the property with the help of the police and he can get an opportunity to move appropriate forum for securing interim order for protection of his possession…” (emphasis provided, bold is done by the undersigned)
10. Further, in the matter of Shipra Hotels
Limited (supra), Hon’ble High Court of
Allahabad has extensively dealt with the issue
which is challenged in the present matter and

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SA No.226 of 2023

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held that the notice before taking possession is necessary. 11. Admittedly, in the present case the possession notice was duly served upon the Applicants on 16.10.2023 and after expiry of 14 days, the possession was taken on 17.11.2023, thus, the action of the Respondent is in accordance to law & judgments. 12. For the foregoing reasons, the present SA as well as the pending IA are hereby dismissed accordingly. File be closed and consigned to record room. P.O. DRT-I

Bec Fertilizers Limited v. Bank of Baroda

Case brief

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Bec Fertilizers Limited v. Bank of Baroda

Case brief

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