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2016 (3) TMI 763 - SUPREME COURT

2016 (3) TMI 763 - SUPREME COURT - TMI - Maintainability of appeal - constitutionality of sections 2, 12 and 15(a) of the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2012 notified on 3rd of January, 2013 and the said Act to have brought into force as well on 15th January, 2013 - Held that:- The petitioner having filed a writ petition before the High Court under Article 226 of the Constitution of India, the writ petition having been admitted by the Court, the High .....

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identical set of facts for identical reliefs. Writ petition is dismissed with costs of ₹ 1,00,000/- (rupee one lakh only) to be deposited with the Supreme Court Legal Services committee within four weeks. - Writ Petition (Civil) No. 35 of 2016 - Dated:- 9-3-2016 - Kurian Joseph And Rohinton Fali Nariman, JJ. For the Petitioner : Mr. A.C. Philip, Adv. Mr. Rabin Majumder,Adv. Mr. Anjan Sinha, Adv. For the Respondent : Mr. Rajeev K. Pandaya, Adv. Mr. Rajeev Maheshwaranand Roy, Adv. JUDGMENT .....

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to the Securitisation and reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has brought Multi State Co-operative Society within the ambit of SARFAESI ACT, 2002 and the RDDBFI Act, 1993 and that to further declare that the (Amended) Act, 2012 as unconstitutional and void for it is beyond the legislative domain of the parliament to enact law concerning the co-operative societies except as .....

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of Securities Interest Act, 2002 (as amended) and the Multi-State Cooperative Societies Act, 2002, provisions of the latter Act will prevail for recovery of purported amount due to/from a Co-operative Society or a Member or Borrower thereof and vice versa, and that the former Act stands ousted; (c) To declare that Sections 2, 12 and 15(a) of The Enforcement of Security Interest and Recovery of Debts Laws (amendment) Act, 2012, inserting sub-section 2(c)(iva) in the Securitisation and reconstruct .....

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tting aside the notice dated 7.10.2013 issued by Respondent Bank under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and the order of the Ld. District Magistrate, Thane, dated 10.04.2015 in Case No. 88/2014, Ld. Tahsildar, Thane Notice No. revenue/Room- 1/T-1/Criminal/Vashi/7268/2015/dated 30.04.2015 and the two Possession Notices dated 10.12.2015 vide Ref. No. Criminal/201/2015 and Ref. No. Criminal/202/2015 issued by .....

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d enjoyment of the petitioner's properties, which the Respondent Bank claims to be a secured asset at its hands and, in particular, from dispossessing the petitioner of her residential home under the purported powers under Section 13 of the SARFAESI Act, 2002; (e) To declare that the notice dated 7.10.2013 purportedly under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and impugned order of the Ld. District Magistra .....

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ction 13(2) of the SARFAESI Act, 2002, and that in any scenario the respondent banks are duty bound to afford an opportunity of being heard to the petitioner/her Company before an assignment of the 'security interest' as defined in section 2(zf) of the SARFAESI Act, 2002, which it falsely claim to be existing in its favour to any securitization companies and further that such an obligation, to observe the principles of natural justice, is liable to be read into sections 5, 6 and 7 of the .....

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m under section 13 of the SARFAESI Act, for to permit the respondent Bank to do so would amount to multiplicity of proceedings, and further to restrain and prohibit the Respondent Bank from taking recourse to any precipitatory steps including assignment of the petitioner's property to any Asset Reconstruction Company; (h) issue a writ of prohibition or any other appropriate writ or order restraining and prohibiting the respondents, its agents, servants and privies from in any manner interfer .....

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rate, dated 30/06/2014 purportedly under Section 14 of the SARFAESI Act, 2002 in Case No. 18/2014. (i) issue a writ in the nature of mandamus or any other appropriate writ, order or direction, to the Respondent Bank/Authorised Officer to state on affidavit the source of his authority to invoke Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and to produce a copy of the Resolution, if any, passed by the Board of Directors of t .....

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led another writ petition under Article 226 of the Constitution of India before the High Court of Bombay, literally with the same prayers. In the said writ petition, on 30th October, 2015, the High Court passed the following interim order :- Not on Board. Mentioned. 2. Having heard Mr. Nedumpara, learned counsel appearing for the petitioner and since our attention is invited to the communication at pages 59 and 60 of the paper book, we pass the following order :- i. Issue notice to Respondent No .....

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mount as mentioned above, is not deposited on or before 3rd December, 2015, the ad-interim order to stand vacated without any further reference to the Court. 3. Needless to clarify that this order and direction is without prejudice to the rights and contentions of all parties. 4. Admittedly, the said order was not complied with and therefore, interim order stood vacated. But the writ petition having been admitted by the Court is still pending before the High Court. 5. In the writ petition filed .....

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etition. Though the Hon'ble High Court, Bombay, was pleased to admit the said Writ Petition it was not inclined to stay the proceedings under Sections 13 and 14 of the SARFAESI Act, 2002 unconditionally. The Hon'ble High Court was pleased to grant an injunction, however, the condition subject to which the interim injunction was granted was erroneous that the petitioner was unable to comply with the same. Considering the larger issue, the petitioner, has instituted the instant Writ Petiti .....

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