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2015 (9) TMI 451

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..... in possession, all these facts could have been brought to the notice of the officials and while executing the notice or enforcing it, that third party could have and if genuinely apprehensive, pointed out to these officials and the Police machinery as well that it has nothing to do with the transactions between the bank and the borrower and are put in possession under a valid and legal document. Multiple proceedings for same relief were instituted at Pune and Mumbai before the DRTs. The Tribunal noted the undisputed facts that both the Securitisation Appeals are pending. They are pertaining to the same asset. The Pune Securitisation Appeal is filed by one Unnikrishnan Nambiar, Director and the present petition is filed by the company a juristic person. Thus, more or less same persons filed applications after applications to seek the same relief and on such conclusions equitable and discretionary reliefs were denied by the DRT. The petitioner's appeal / Securitisation Appeal No.4 of 2012 is pending and all this was known to the petitioner. Yet, after inducting a alleged third party in possession and to facilitate it, such collusive proceedings are brought before this Court. I .....

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..... inable because even though the proceedings before the Tribunal may be pending the reliefs that are claimed are under an equitable and discretionary power of this Court. This Court's jurisdiction under Article 226 of the Constitution of India is plenary in nature. It is not controlled nor circumscribed, leave alone restricted by ordinary law. Therefore, it can always grant declaratory reliefs. The declaratory reliefs that are claimed are based on pure questions of law. If the DRT which has been approached by the present petitioner by filing Securitisation Appeal No. 4 of 2012 is a substitute for a civil court and jurisdiction, power and authority of an ordinary civil court is barred, then, an original proceeding must be tried in accordance with the Code of Civil Procedure, 1908. Reliance in that regard is placed upon the judgment of the Hon'ble Supreme Court in the case of Mardia Chemicals Ltd. Ors. vs. Union of India Ors. (2004) 4 SCC 311. 4. Then, it is contended that as far as section 34 of the SARFAESI Act is concerned, that specifically bars the jurisdiction of a civil court. Section 34 says that civil court not to have jurisdiction. Thus, it means that the civil .....

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..... ng the same contentions but they are supported by precedents. Paras after paras from Supreme Court judgments are reproduced making the record of the petition extremely bulky. 6. On the other hand, on behalf of the bank it is contended that this petition is a gross abuse of the process of this court. The petitioner has moved this Court knowing fully well that not only the action under section 13(2), 13(4) of the SARFAESI Act is complete, but even a notice under section 14 of the Act has been issued and by the competent District Magistrate empowering the secured creditor to take possession of the secured assets. It is at such belated stage and for seeking discretionary and equitable reliefs that the petitioner approached this Court. When this matter was moved, this Court was informed that the Presiding Officer of the Debts Recovery Appellate Tribunal (for short DRAT ) is not available in Mumbai and, therefore, the petitioner-appellant is not in a position to avail of that remedy to challenge the order passed on 23rd April, 2015 by the DRT-I in Securitisation Appeal No.4 of 2012. 7. Further, this Court was told and informed that the respondents may take over possession of the f .....

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..... the notice under section 14 of the SARFAESI Act. The proceedings reached finality and it was pointed out that the borrower company and the Director with mala fide intention to defraud and obstruct the recovery proceedings inducted third party in possession in the secured assets. The plaintiff in the civil suit was inducted prior to the institution of this Writ Petition. In any event, it was on the eve of the same. Pertinently, that third party (Pravin) had filed a suit civil court at at Vasai prior to the application for ad-interim relief in this Writ Petition. That third party, if genuine, could have sought relief in its independent proceedings. However, in order to further the collusive act, this relevant and material aspect was suppressed from this Court. Therefore, knowing fully well that the civil court may not protect this third party, the petitioner firstly applied for interim relief in its own proceeding in DRT and when DRT rejected the same, that the Writ Petition is filed during the pendency of DRAT Appeal. The interim application in the said Securitisation Application was dismissed / rejected by the DRT-I on 23rd April, 2015. After the section 14 proceedings were comple .....

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..... d of facilities and credit facilities specially from SBI. That is apparent from paragraphs 2 and 3 of the Memo of this petition. From paragraph 4 onwards the bank is alleged to have acted contrary to the contractual obligations and the narration continues. It has been stated in paragraph 4 itself that the petitioner was in receipt of a notice dated 3rd August, 2011, under section 13(2) of the SARFAESI Act demanding payment of a sum of ₹ 64,51,40,145/-. The argument is that this notice was never served on the petitioner and they had no occasion to reply to the same. It is in these circumstances that fault is found with the further notice under section 13(4) of the SARFAESI Act. In paragraph 6 at page 9 of the petition it is pointed out as to how Securitisation Appeal No.4 of 2012 has been filed in the DRT to challenge these notices and interim protection sought therein. That was also granted on 19th April, 2012 (the order of status quo). Afterwards it is narrated as to how the bank, acting contrary to this order of status quo, went ahead and issued a letter dated 9th April, 2013 threatening to publish the photo, names and addresses in newspapers unless the amount claimed by th .....

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..... interlocutory applications have been filed in the Securitisation Appeal No.4 of 2012 and numbers of the same are set out at page 153 of the paper-book, for different reliefs by Unnikrishnan Nambiar alongwith his duly sworn affidavit contending that the Directors of the company are abusing the process of the Tribunal by filing different Securitisation Appeals before different Tribunals, both in their individual names as well as in the name of the company with contradictory pleas in order to obtain some interim orders so as to prevent the respondent-bank from realising huge public money running into more than ₹ 65 crores. The bank's objection is that the parties are indulging in forum shopping. The petitionerapplicant on the other hand argued that in the Securitisation Appeal filed by M/s. Vibgyor Texotech Limited it is represented by K.V. Dhananjay and has nothing to do with the Securitisation Appeal filed by others before the DRT, Pune and the orders passed by DRT, Pune are not binding on the applicant-petitioner before us. 11. Thus, multiple proceedings for same relief were instituted at Pune and Mumbai before the DRTs. The Tribunal noted the undisputed facts that bot .....

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..... proceedings are brought before this Court. In the present circumstances really the protection given by this Court is completely misused and to institute multiple proceedings. 14. In the circumstances, while not completely non-suiting the petitioner and clarifying that all legal and constitutional issues can be raised at an appropriate stage and before an appropriate forum, we proceed to dismiss this Writ Petition with costs quantified at ₹ 50,000/- to be paid to the first respondent bank or its advocate within a period of four weeks from today. The Writ Petition was exfacie not maintainable as the petitioner has already instituted the proceedings before the competent court. We keep open all contentions of both sides therein, including on territorial jurisdiction of the Tribunal to take up the Original Application filed by the bank under sections 17 and 19 of the RDB Act, 1993. Equally, we keep open the objections which have been raised on the footing that the bank must institute proceedings in the Tribunal / courts where the security asset is located or otherwise. These contentions can be raised and by both sides. They are open for being considered by the competent courts. .....

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