Final Order 1

Order Details: Order below Ex-1
Pdf Text: 1 C.C.No.82/SA/2019
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
3RD COURT, ESPLANADE, MUMBAI
(Presiding Officer – P. M. Gupta)
Case No.82/SA/2019
(CNR NO.MHMM11-000805-2019)
Tata Capital Financial Services Limited,
having registered address at 11th Floor, Tower
A, Peninsula Business Park, Ganpatrao Kadam
Marg, Lower Parel, Mumbai – 400 013.
Through its Authorized Officer Mr.Pawan
Kumar Dagar. …. Applicants
Versus
1. Maharashtra Hind Security Guards Pvt. Ltd.,
2. Mrs. Susy Sebastian,
3. Mrs. Renuka Rajesh Patange,
4. Mr. Rajesh Ramakant Patange,
All having address at;
a) Off. 604, Plot No.12, The Sindhi
Immigrants C.H.S., Opp. Vasan Motors, V. N.
Purav Marg, Mumbai – 400 071.
b) Flat No.1103 & 1104, Building No.D, Bhoj
Bhawan, Sion-Trombay Road, Plot No.18,
C.T.S. No.449, BHN, Opp. H. P. Petrol Pump,
Mumbai – 400 071. …. Respondents
_______________________________________________________________
Appearance :-
For Applicant :- Advocate Naik Patil Salvi & Associates.
_______________________________________________________________
ORDER BELOW EXH.1
1] This is an application Under Section 14 of the
Securitisation and Reconstruction of Financial Assets and Enforcement
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of Security Interest Act, 2002 (in short “SARFAESI Act”) for taking
possession of the secured assets known as :-
“Flat No.1103 & 1104, Building No.D, Bhoj Bhawan, Sion-
Trombay Road, Plot No.18, C.T.S. No.449, Opp. H. P. Petrol Pump,
Chembur (East), Mumbai – 400 071.”
2] Brief contents of application are as under :-
Applicant bank has granted the Loan against property of
Rs.2,12,50,000/- (Rupees Two Crores Twelve Lacs Fifty Thousand Only)
to the respondents on 31/01/2017.
As against financial assistance Borrowers have created security
interest over above referred secured assets. Secured assets are situated
within territorial jurisdiction of this court. Till the date of filing of this
application applicant is holding a valid and subsisting security interest
over secured asset. In pursuance to granting of financial assistance and
creating of security interest over secured assets various documents are
executed by respondents in favour of applicant. In due course borrower
has committed default in repayment of the financial assistance, thus the
account of the borrower has been classified as “Non Performing Asset”
on 18/07/2018. In sequel, Demand Notice dated 24/08/2018
U/Sec.13(2) of the SARFAESI Act was issued by RPAD to their last
known addresses and called upon them to repay outstanding amount
within 60 days from the date of service of notice. The said notice was
served upon the respondents. Despite, the said notice respondents have
not complied with the requisitions for payment of outstanding loan
amount within stipulated period of 60 days. Hence, applicant is
constrained to file this application, which is well in limitation.
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3] In catena of judgments Hon'ble Supreme Court and Hon'ble
Bombay High Court have settled the position of law that no notice is
required to be issued to borrowers and guarantors when application
Under Section 14 of SARFAESI Act is filed. Thus no notices are issued
to respondents.
4] It is requirement of Section 14 of SARFAESI Act that
Authorized Officer of applicant financial institute has to file affidavit
containing therein facts mentioned in Section 14(1)(b)(i) to 14(1)(b)
(ix). Accordingly Authorized Officer had filed affidavit at Exh.3. In
addition to affidavit, copies of documents are placed on record.
Authorized Officer has also tendered original documents before Court,
for verification with copies on record. Such documents are loan
application, loan sanction order, loan agreement, memorandum of
deposit of title deeds, title deeds, notice under section 13(2) of
SARFAESI Act to respondents, postal receipts etc.
5] Perused the application, affidavit submitted by the
authorized officer of applicant and documents filed on record of the
case. Heard Ld. Advocate for applicant. It comes to my knowledge that
applicant has granted the Loan against property of Rs.2,12,50,000/-
(Rupees Two Crores Twelve Lacs Fifty Thousand Only) to the
respondents on 31/01/2017. In pursuance of such financial assistance
respondents have executed various documents in favour of applicant to
create security interest over secured assets known as Flat No.1103 &
1104, Building No.D, Bhoj Bhawan, Sion-Trombay Road, Plot No.18,
C.T.S. No.449, Opp. H. P. Petrol Pump, Chembur (East), Mumbai – 400
071. However, in due course failed to repay loan. Thus applicant
constrained to declare borrowers account as “Non Performing Asset”
and constrained to issue a notice dated on 24/08/2018 U/Sec.13(2) of
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SARFAESI Act, demanding outstanding amount of Rs.2,26,52,079/-
(Rupees Two Crores Twenty Six Lacs Fifty Two Thousand Seventy Nine
Only), but in vain, as respondents have not complied the notice within
stipulated period of 60 days. Thus present application came to be filed.
Whereas secured assets are located in territorial jurisdiction of this
Court and claim of applicant is well in limitation. More so, as per the
pleading, documents filed in the case and affidavit of authorized officer
of applicant, it transpired that secured assets are not in possession of
any lessee/tenant/third party and there is no stay to present proceeding
by any competent Court. So I do not found any barrier to pass order in
favour of applicant Under Section 14 of SARFAESI Act to take over
possession of aforesaid secured assets.
6] As per Section 14(1A) of the SARFAESI Act this Court may
authorize any subordinate officer of court to take over possession of
secured assets. However, looking that this court is flooded with
applications under section 14 of SARFAESI Act and considering that
already subordinate officers of this court are overburdened with
workload, it seems that it is neither practicable nor feasible to take over
possession of secured assets expeditiously by authorizing subordinate
officer of this court for taking over possession of secured assets. In this
scenario, it is significant to take aid of ratio laid down by Hon'ble
Bombay High Court in case of M/s. J. Marks Exim (India) Pvt. Ltd. V/s
Punjab National Bank in Writ Petition No. 3248/2017, order dated
17/03/2017. Wherein it is held that, “no prejudice to the petitioner, if a
member of the Bar is appointed as Court Commissioner to take
possession of the secured asset”. Hence, in consultation with The
Bombay Metropolitans' Courts' Bar Association, Esplanade Court,
Mumbai this Court has prepared a list of Advocates, who are interested
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to work as Court Commissioner. From the said list, Advocate Ganesh
Thomare is appointed as a Court Commissioner for taking over the
possession of the aforesaid secured assets.
7] Before parting with order, I would like to mention here
that, this Court has experienced time and again that under the garb of
settlement talks are going on, the applicant bank through its Authorized
Officer is dictating/suggesting/directing to Court Commissioner that not
to comply the writ of commission within stipulated time granted by the
Court. Such attempt by Bank/financial institution may amounts to
contempt of Court. Thus, such practices have to be deprecated. The
Bank/financial institutes have to permit Court Commissioner to comply
writ of commission and if any settlement works out then release the
property to concerned. But at any cost not required to be restrained to
Court Commissioner from compliance of writ of commission. Thus, I
proceed to pass following order;
ORDER
I. Application Under Section 14 of the SARFAESI Act is
allowed and Authorized Officer Mr. Pawan Kumar Dagar is permitted to
take over possession of aforesaid secured assets on behalf of applicant
bank.
II. Advocate Ganesh Thomare, 204/A/R-6, Ajinkya CHS Ltd.
Maathon Nagari, Yadav Nagar, Shirgaon, Badlapur (E), is hereby
appointed as Court Commissioner to take over possession of the secured
assets known as Flat No.1103 & 1104, Building No.D, Bhoj Bhawan,
Sion-Trombay Road, Plot No.18, C.T.S. No.449, Opp. H. P. Petrol Pump,
Chembur (East), Mumbai – 400 071 and hand over to the aforesaid
Authorized Officer only, under panchanama, and not to handover to any
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other officer of the applicant, who is not Authorized Officer on record in
this proceeding.
III. Applicant to pay Rs.23,000/- (Rs. Twenty Three Thousand
Only) for taking possession of all aforesaid secured assets to the Court
Commissioner as a fees as well as to and fro charges to him/her, by
Cash/Pay Order/Demand Draft/cheque in favour of the aforesaid Court
Commissioner, within fifteen days from the date of this order, and take
care that cheque will not be bounced for any reason, otherwise it will be
viewed seriously to take appropriate action against the concerned
Authorized Officer.
IV. Authorized Officer to furnish his full office address,
residential address, mobile number, land line numbers of office and
residence, in order to facilitate Court commissioner to contact him/her.
The Bank/Financial Institute, Authorized Officer are directed not to
dictate/direct/suggest to Court Commissioner by any mode to deffer
taking over possession of secured assets, unless stay granted by any
Competent Court, and if any one does so, then it is subject to
appropriate action against him or her whoever may be so.
V. Court Commissioner to issue 15 days advance notice to the
concerned party/parties and to take such steps and use such force
including breaking open the lock or any hurdle thereof by taking
assistance of police if required at the expenses of the applicant and if
any articles/documents found in the secured assets then deliver its
possession to the Authorized Officer of the applicant after preparing
panchanama and taking inventory.
VI. The Police Station Officer within whose territorial
jurisdiction secured assets are located, is hereby directed to provide
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police aid to Court Commissioner if he/she required so for taking over
possession of secured assets. Despite of advance letter from Court
Commissioner to provide police aid, if such police officer failed to
provide police aid for no reason or petty or unreasonable ground then it
will be viewed seriously for taking appropriate action. Equally if such
police officer gives any ill-treatment or insulting treatment to Court
Commissioner, then it is also subject to appropriate action. Such police
officer is also directed not to indulge himself in the issue of legality or
illegality of order.
VII. Court Commissioner shall report the compliance within 90
days from the receipt of Writ of the Commission. However, in the
meantime, if any Competent Court grants stay to execute this order
then automatically until such stay order will be in force, time to comply
writ of commission will be deemed to be extended and no separate
application for extension of time for execution of writ of commission
will have to be filed before this Court by the Court Commissioner.
VIII. If any person attempts to seek favour from Court
Commissioner in order to delay the taking over possession of secured
assets, then Court Commissioner is duty bound to communicate such
fact to this Court and provide details of said person, including landline
or mobile number of that person if any, to facilitate this Court to take
appropriate action against said person.
IX. If Court Commissioner found to be indulged in favouring to
any person for delay to take over possession of secured assets then such
act will be subject to appropriate action, including reference to Bar
Council of Maharashtra & Goa for necessary action for misconduct.
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X. If Court Commissioner failed to execute possession warrant
for any default on his part, then Court Commissioner fees as well as to
and fro charges are subject to refund to applicant along with interest
@18% per annum from the date of its receipt. Thus, before receipt of
Court Commissioner fees, Court Commissioner to give undertaking
accordingly.
XI. If any contingency arises in future to refund Court
commissioner fees and Court Commissioner failed to repay it to
applicant, then it is subject to reference to Bar Council of Maharashtra
and Goa for taking appropriate action for misconduct.
XII. On compliance of Clause No. III & IV, issue Writ of
Commission.
(P. M. Gupta)
27.08.2019 Addl. Chief Metropolitan Magistrate,
pk/- 3rd Court, Esplanade, Mumbai.
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