Final Order 1

Order Details: Order below Ex-1
Pdf Text: 1 C.C.No.568/SA/2023
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
3RD COURT, ESPLANADE, MUMBAI
(Presiding Officer – Shri J. C. Yadav)
Case No.568/SA/2023
(CNR NO.MHMM11-005744-2023)
Dated – 06/11/2023
Bank of India,
Khar Branch, Khar Telephone Exchange
Building, Ground Floor, Khar Pali Road, Khar
(West), Mumbai – 400 052. Through its
Authorized Officer. …. Applicant
Versus
1. Mr. Shailesh Anandji Gothi, Proprietor of
M/s.Omkar Mens Wear,
2. Mrs. Jaya Shailesh Gothi,
3. Omkar Mens Wear,
All having address Shop No.G-35 and G-36,
Milan Shop Centre, Final Plot No.30A, TPS CTS,
Milan Subway, Santacruz (West), Mumbai – 400
053. …. Respondents
_____________________________________________________________
Appearance :-
For Applicant :- Advocate Sangram P. Bapat/Pankaj Mishra.
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 :-
“Flat No.202, 2nd Floor, B-Wing, Shubh Residency, D. N.
Nagar, Andheri (West), Mumbai – 400 053”
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2] Brief contents of application are as under :-
Applicant has granted to respondents Loan Facilities to the
tune of Rs.2,32,72,000/- (Rupees Two Crores Thirty Two Lakhs
Seventy Two Thousand Only) vide respective Sanction Letters.
As against the aforesaid financial assistance, respondents
have created security interest over above referred secured asset in
favour of the applicant. The 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 grant of financial assistance and
creating of security interest over secured asset, various documents
are executed by respondents in favour of the 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 11/10/2022. In sequel, Demand Notice
dated 19/10/2022 U/Sec.13(2) of the SARFAESI Act was issued to
their last known addresses and they were called upon to repay
outstanding amount within 60 days from the date of service of notice.
The said demand notice was served upon the respondents by Hand
Delivery. Despite, the service of said notice, respondents had 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
Under Section 14 of SARFAESI Act is filed. Thus, no notices are
issued by court to respondents.
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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.03. In
addition to affidavit, copies of certain documents are placed on
record. Authorized Officer has also tendered original documents
before Court, for verification with copies on record. Such documents
are loan sanction orders, loan agreements, memorandum of deposit
of title deeds, title deeds of mortgage property, notice given under
section 13(2) of SARFAESI Act to respondent, proof of hand delivery,
etc. Further, applicant has filed on record CERSAI Report with regard
to compliance under section 26D of SARFAESI Act.
5] Perused the application, affidavit submitted by the
authorized officer of the applicant and documents filed on record of
the case. Heard Ld. Advocate for applicant. It comes to my knowledge
that applicant has granted the aforesaid financial assistance to
respondents. In pursuance of such financial assistance, respondents
have executed various documents in favour of applicant to create
security interest over the aforesaid secured asset. However, in due
course respondents failed to repay the loan amount. Thus, applicant
is constrained to declare borrower’s account as “Non Performing
Asset” and constrained to issue Demand Notice dated 19/10/2022
U/Sec.13(2) of SARFAESI Act, demanding total outstanding amount
of Rs.2,28,96,165.32 (Rupees Two Crores Twenty Eight Lakhs Ninety
Six Thousand One Hundred Sixty Five and Paise Thirty Two Only),
but in vain. Respondents had 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
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Court and claim of applicant is well in limitation. More so, as per the
pleading, documents filed on record and affidavit of authorized
officer of applicant, it transpired that secured asset is not in
possession of any lessee or tenant 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 the applicant under Section 14 of SARFAESI
Act to take over possession of aforesaid secured asset.
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 Supreme Court of India in NKGSB Co-operative Bank Ltd.
Vs. Subir Chakravarty SPL (C) 30240 of 2019, Order dated
25/02/2022 to appoint additional members from Bar as Court
Commissioner. 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 Kailash
Nath Maurya 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 through its Authorized
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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 (as per SARFAESI Act) is permitted to take
over possession of aforesaid secured asset on behalf of applicant.
II. Advocate Kailash Nath Maurya, 107, Ashoka Shopping
Centre, Opp. G. T. Hospital L.T. Road, Kalbadevi, Mumbai 400 002 &
Also at : Flat No. 601, Aniruddha Ladmark, Plot No. 258/259, Sector-
23, Jui Nagar, Opp. Hari Om Mandir, Navi Mumbai 400705 (Mobile
No.9324384246/ 9619158384) is hereby appointed as Court
Commissioner to take over possession of the secured asset known as
“Flat No.202, 2nd Floor, B-Wing, Shubh Residency, D. N. Nagar,
Andheri (West), Mumbai – 400 053” and hand over to the Authorized
Officer 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.15,000/- (Rupees Fifteen Thousand
Only) for taking possession of aforesaid 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
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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/her 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
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.
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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.
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.
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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.
Sd/-
Mumbai (Jaywant C. Yadav)
Dated : 06/11/2023 Additional Chief Metropolitan Magistrate,
3rd Court, Esplanade, Mumbai.
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