Final Order 1

Order Details: Order below Ex-1
Pdf Text: 1 C.C.No.83/SA/2019
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
3RD COURT, ESPLANADE, MUMBAI
(Presiding Officer – P. M. Gupta)
Case No.83/SA/2019
(CNR NO. MHMM11-000808-2019)
TATA CAPITAL FINANCIAL SERVICES LTD.,
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 Dagar. …. Applicants
Versus
1. Subodh Packaging,
2. Mrs. Nina Vinod Gada,
3. Mr. Chetan Gada,
1 Bagwe Bhavan, JP Nagar Road No.1,
Goregaon East, Mumbai – 400 063.
And :-
Flat No.601, Golden Apartment, Rambaug,
M.G. Road, Goregaon West, Mumbai – 400
063. …. 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
of Security Interest Act, 2002 (in short “SARFAESI Act”) for taking
possession of the secured asset known as :-
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“Flat No.601 admeasuring carpet area 850 sq.ft. and super
built-up area 850 sq.ft. on the 6th Floor, Golden Apartment, Rambaug,
M. G. Road, Goregaon West, Mumbai – 400 063.”
2] Brief contents of application are as under :-
Applicant bank has granted a loan against property (Home Equity
Finance) total of Rs.1,70,00,000/- (Rupees One Crore Seventy Lacs
Only) to the respondents on 31/08/2016.
As against financial assistance Borrowers and Guarantors have
created security interest over above referred secured asset. Secured
asset is 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 asset
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 07/08/2018. In sequel, Demand
Notice dated 22/09/2018 U/Sec.13(2) of the SARFAESI Act was served
upon the respondents via RPAD as well as paper publication and
thereby called upon them to repay outstanding amount within 60 days
from the date of service of notice. 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.
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
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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 & 6. 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
applications, loan sanction orders, loan agreements, memorandum of
deposit of title deeds, sale deed, notice under section 13(2) of
SARFAESI Act to respondents, postal receipts, track reports, paper
publication 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 a loan against property (Home Equity Finance)
total of Rs.1,70,00,000/- (Rupees One Crore Seventy Lacs Only) to the
respondents on 31/08/2016. In pursuance of such financial assistance
respondents have executed various documents in favour of applicant to
create security interest over secured asset known as Flat No.601
admeasuring carpet area 850 sq.ft. and super built-up area 850 sq.ft. on
the 6th Floor, Golden Apartment, Rambaug, M. G. Road, Goregaon West,
Mumbai – 400 063. However, in due course failed to repay loan. Thus
applicant constrained to declare borrowers account as “Non Performing
Asset” and constrained to issue a demand notice dated on 22/09/2018
U/Sec.13(2) of SARFAESI Act, demanding total outstanding amount of
Rs.1,71,93,780/- (Rupees One Crore Seventy One Lacs Ninety Three
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Thousand Seven Hundred Eighty 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 asset is 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
asset is 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 asset.
6] As per the affidavit (Exh.06) submitted by the authorized
officer of the applicant, in respect of the aforesaid financial assistance,
applicant has initiated two arbitration proceedings against the
respondents as per the arbitration agreement between them. In those
proceedings, the award was passed and execution proceedings are
pending before the Hon’ble Bombay High Court, Mumbai. Pendency of
arbitration proceedings or execution proceedings in respect of the
award passed in arbitration proceedings shall not debar the
applicant/secured creditor for filing an application Under Sec.14 of
SARFAESI Act for taking the possession of the secured assets. On this
point, I place reliance on the judgment of the Hon’ble Supreme Court
delivered in Indiabulls Housing Finance Ltd. Vs. M/s. Deccan Chronicle
Holdings Ltd. & Ors. reported in (2018) 14 SCC 783. In the judgment
cited supra the Hon’ble Apex Court held that,
“
The SARFAESI Act is a special enactment which was
enacted by Parliament to provide speedy remedy to the
banks and financial institutions without recourse to the
Court of Law. On the other hand, The Arbitration and
Conciliation Act, in contrast, is a statute of general
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nature. Merely because steps are taken under this General
Law would not mean that remedy under the special
statute is foreclosed.”
7] As per Section 14(1A) of the SARFAESI Act this Court may
authorize any subordinate officer of court to take over possession of
secured asset. 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 asset expeditiously by authorizing subordinate
officer of this court for taking over possession of secured asset. 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
to work as Court Commissioner. From the said list, Advocate Wilson
Vasant Gaikwad is appointed as a Court Commissioner for taking over
the possession of the aforesaid secured asset.
8] 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
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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 Dagar is permitted to take
over possession of aforesaid secured asset on behalf of applicant bank.
II. Advocate Wilson Vasant Gaikwad, r/o. 5/6, Pandita
Ramabai Hostel Campus, Kashibai Naurange Marg, Mumbai. (Mobile
No. 9892782654), is hereby appointed as Court Commissioner to take
over possession of the secured asset known as Flat No.601 admeasuring
carpet area 850 sq.ft. and super built-up area 850 sq.ft. on the 6th Floor,
Golden Apartment, Rambaug, M. G. Road, Goregaon West, Mumbai –
400 063 and hand over to Authorized Officer Mrs. Gayatri Rajvanshi
only, under panchanama, and not to handover to any other officer of
the applicant, who is not Authorized Officer on record in this
proceeding.
III. Applicant to pay Rs.13,000/- (Rs. Thirteen Thousand Only)
for taking possession of secured asset 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 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.
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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 asset, 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 asset 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 asset is located, is hereby directed to provide police
aid to Court Commissioner if he/she required so for taking over
possession of secured asset. 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.
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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
asset, 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 asset then such
act will be subject to appropriate action, including reference to Bar
Council of Maharashtra & Goa for necessary action for misconduct.
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
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and Goa for taking appropriate action for misconduct.
XII. On compliance of Clause No. III & IV, issue Writ of
Commission.
(P. M. Gupta)
04.10.2019 Addl. Chief Metropolitan Magistrate,
pk/- 3rd Court, Esplanade, Mumbai.
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