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SCA/1176/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1176 of 2010
With
CIVIL
APPLICATION No. 5333 of 2010
In
SPECIAL
CIVIL APPLICATION No. 1176 of 2010
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VIJAYBHAI
NAVNITLAL THAKKAR & 1 - Petitioner(s)
Versus
GRUH
FINANCE LTD THRO.AUTHORISED OFFICER & 1 - Respondent(s)
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Appearance :
MR
RAVINDRA SHAH for Petitioner(s) : 1 - 2.
MR SURYASINH
PARMAR for Petitioner(s) : 1 - 2.
NOTICE SERVED BY DS for
Respondent(s) : 1 - 2.
MR NEHAL R JOSHI for Respondent(s) : 1,
MR
AJ DESAI, AGP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 13/05/2010
ORAL ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
writ petition was preferred by the petitioner against the action
taken by the respondent – bank under Section 14 of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 [hereinafter referred to as “the
Securitization Act” or “the Act”] qua the property of
the first petitioner situated at C/12, Shrijidham Society, Part-II in
the lane of Kishan Samosa, College Road, Nadiad.
2. When
it was brought to the notice of the counsel that there is a remedy of
appeal under Section 17 of the Securitization Act, it is contended
that the Debts Recovery Tribunal is generally not entertaining any
application against the steps taken under Section 14 of the Act on
the ground that the possession has not been taken and thereby the
measures under Section 13(4) of the Act have not been taken.
It
is contended that in the present case, the respondent – bank
highlighted Section 13(3A) of the Act. Inpsite of the reply given by
the petitioner to the notice issued under Section 13(2), the bank
without giving any reason for rejecting the prayer, has taken steps
to take possession under Section 14 of the Act.
3. The
learned counsel appearing on behalf of the bank while accepts that
steps have been taken under Section 14, requested to vacate the
interim order passed by this Court on the ground that the installment
as ordered to be paid by this Court is less than the installment
which the petitioner is liable to pay as per the agreement. It is
further contended that the petitioner never filed any representation
within a period of 60 days as stipulated under Section 13(2) of the
Act and only when the measures were taken under Section 14, such
representation has been filed.
4. We
have heard the learned counsel for the parties and perused the
record.
5. Section
13(4) enables the secured creditor to take recourse to one or more
measures mentioned therein. If the borrower fails to discharge its
liability, under Section 13(4)(a) possession of the secured assets of
the borrower including the right to transfer by way of lease,
assignment or sale for realizing the secure asset can be taken by the
secured creditor. For the purpose of taking over management of the
business of the borrower including the right to transfer by way of
lease, assignment or sale for realizing the secure asset, possession
can be taken under Clause (b) of sub-section (4) of Section 13 of the
Securitization Act. While Rule 4 of the Security Interest
(Enforcement) Rules, 2002 provides for taking possession of the
movable property, similar provision has been made to take possession
of the immovable property for the purpose of sale under Rule 8 of the
2002 Rules. In case the borrower fails to give possession, it is
open to the secured creditor to take possession of the secured asset
with the assistance of the Chief Metropolitan Magistrate or the
District Magistrate under Section 14 of the Act.
6. From
the aforesaid provisions, it will be evident that the assistance if
taken under Section 14 of the Act for possession of the secured
assets, the same amounts to taking measures under Section 13(4) of
the Act. In such case, even at the stage of taking possession under
Section 14, an appeal under Section 17 is maintainable.
7. In
the present case, as we find that the respondent – bank has taken
measures under Section 14 of the Act. thereby the measures taken
under Section 13(4) of the Act, we are of the opinion that the
petitioner in such case should take the recourse of appeal under
Section 17 of the Act. If any such appeal is preferred by the
petitioner within three weeks, the Debts Recovery Tribunal, taking
into consideration the fact that the petitioner was pursuing the
matter before this Court, will entertain the appeal and decide all
the questions as raised in this case on merits after notice to the
respondent – bank. It will be open to the petitioner to ask for
interim relief in view of the fact that the interim relief was
granted by this Court and the Tribunal will pass appropriate orders
on the same in accordance with law. As we have not decided the case
on merits, but remitted the matter for determination of the issue by
the Debts Recovery Tribunal, and that this Court had granted interim
order in favour of the petitioner, it is desirable that the bank
should not take any coercive steps against the petitioner, till the
appeal alongwith the petition for interim relief is filed and some
order is passed by the Tribunal on the same. However, if the appeal
or the petition for interim relief is not filed within the period
aforesaid, it will be open to the bank to proceed in accordance with
law.
8. Both
the writ petition and the Civil Application stand disposed of with
the aforesaid observations and directions. No costs.
Direct
Service is permitted.
[S.J.
MUKHOPADHAYA, CJ.]
[AKIL
KURESHI, J.]
sundar/-
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