TMI Blog2010 (3) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... trary to law in the impugned order and the communication nor they are violative of the provisions of the Constitution of India. W.P. dismissed. - WP (Lodging) No. 276 of 2010 - - - Dated:- 29-3-2010 - J N PATEL AND A P BHANGALE, JJ S.U Kamdar and Pooja Patil for the Petitioner . Dr. B B Saraf for the Respondent . JUDGMENT Heard. Rule. Learned counsel appearing on behalf of respondent No. 2 waives notice. By consent, taken up for hearing forthwith. 2. The petitioners seek to invoke the writ jurisdiction under article 226 read with articles 14, 19 and 300A of the Constitution of India, questioning the legality and propriety of the notice dated 5th January, 2010, issued by the Tahsildar, Palghar, District Thane, informing the petitioners to handover possession of the immovable and movable properties to respondent No. 2 the Asset Reconstruction Company Ltd. ('ARCIL'), within 15 days from the date of the notice. The petitioners have also prayed for quashing and setting aside of the order dated 24th August, 2009, passed by the learned District Magistrate, Thane and for issuance of a direction prohibiting respondent Nos. 1 and 2 from taking actual possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1 filed Original Application No. 65 of 2004 before the Debts Recovery Tribunal ('DRT') and on 23rd June, 2009 obtained an order from the court of the Chief Metropolitan Magistrate, Esplanade, Mumbai, for taking forcible possession. The petitioners, thereafter, filed Writ Petition (Lodging) No. 1315 of 2009 in this court. By an interim order dated 7th July, 2009, this court observed that the symbolic possession shall vest in the respondents but the physical possession shall not be disturbed. As the interim order was continued by this court with a direction to the petitioners to argue the original application before the DRT, on 7th September, 2009 the petitioners withdrew Writ Petition No. 1315 of 2009 and filed an application before the DRT-III being Application No. 136 of 2009, which came to be dismissed on 24th December, 2009. Thereafter, the petitioners preferred an appeal before the Debts Recovery Appellate Tribunal ('DRAT') being Appeal No. 36 of 2010. The DRAT by ifs order dated 29th January, 2010 directed the petitioners to deposit a sum of Rs. 1.25 crore by 31st March, 2010 and stayed the delivery of possession of the property till then. Thus, upon receiving the notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich did not provide/permit for assignment of debt to a third party. Reference is then made to press into service the decision in Kalyani Sales Co. v. Union of India [2006] 70 CLA 207 /AIR 2006 P H 107 to submit that a borrower or any person in possession of an immovable property cannot be physically dispossessed at the time of issuing notice under section 13(4) of the Act so as to defeat adjudication by the DRT and that physical possession cannot be taken by banks or financial institutions by following the procedure laid down under section 14 of the Act, or after the sale is confirmed in terms of rule 9 of the Security Interest (Enforcement) Rules, 2002. According to the learned counsel, the impugned order and the notice/communication are violative of the fundamental right of equality before the law, freedom of business and right to property. 7. On the other hand, the learned counsel for respondent No. 2 contended that the petition is misconceived as there is no infringement of any right of the petitioners. He submitted that the factory premises of the petitioners were inspected by the Circle Officer of Tarapur at the instance of the Tahsildar on 28th January, 2010 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also placed in the decision of a Division Bench of this court in ATV Projects India Ltd. v. State of Maharashtra [2007] (6) Mh. LJ 231/ [2007] 4 Bom. CR 711 to emphasise the submission that once a notice under section 13(2) of the Act is issued, thereafter, for further steps to enforce the security interest under section 14 of the Act, the principles of natural justice are not involved, as only a request for help is made to the Chief Metropolitan Magistrate or the District Magistrate concerned, as the case may be, to take possession of the secured assets or other documents and to forward such assets and/or documents to the secured creditor. The act of the Chief Metropolitan Magistrate or the District Magistrate concerned, as the case may be, in assisting the secured creditor to enforce the security interest cannot be called into question in any court or before any authority. The learned counsel, therefore, submitted that the petition is liable to be dismissed. 8. We have perused the petition and the annexures thereto and have also considered the submissions advanced as also the decisions referred to by the respective counsel. 9. The Act was brought into force since 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 13(4) of the Act by the secured creditor. The secured creditor is entitled to take any of the measures to recover his secured debt once noticee-borrower has failed to comply with the statutory notice given under section 13(2) of the Act. Those measures include taking possession (symbolic or actual) of the secured assets of the borrower and to transfer the secured assets for realisation thereof or taking over of the management of the borrower's business for the purpose or realising the secured assets, appointing any person to manage the secured assets taken possession of, to recover the secured assets if acquired by any person from the borrower. The borrower, if is aggrieved by the measures taken by the secured creditor under section 13(4), can invoke the remedy of an appeal under section 17 of the Act on the ground that the action taken is wrong and may prefer further appeal as permissible in view of section 18 of the Act. 10 . Looking to the scheme of the Act; the non-obstante clauses introduced to give overriding effect to the provisions of the Act in the interest of a healthy and growth-oriented economy in India, as also the fact that civil court under section 34 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 56) of its decision in Transcore ( supra ), if a borrower is dispossessed unlawfully or not in accordance with the provisions of the Act, then the DRT is entitled to put the clock back by restoring the status quo ante. Therefore, it cannot be said that if possession is taken before the confirmation of sale, the rights of the borrower to get the dispute adjudicated upon is defeated by the authorised officer taking possession. In view of the non-adjudicatory process under section 14, it would be erroneous to say that the rights of the borrower would stand defeated without adjudication. 11. The order dated 24th August, 2009 is issued pursuant to an action requested by the assignee-financial institution in terms of section 14 of the Act directing the Tahsildar, Palghar, District Thane to do the needful to take possession of the secured assets, i.e., the mortgaged property standing in the name of the petitioners herein. Pursuant to the order from the District Magistrate, Thane, the Tahsildar concerned sent a communication dated 5th January, 2010 to the petitioners informing them to hand-over possession of the property in question so as to enable him to hand-over the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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