Bombay High Court
Aditya Birla Finance Ltd., Nagpur, Thr. ... vs State Of Maharashtra, Thr. Secretary, ... on 28 July, 2021
Author: Anil S.Kilor
Bench: Sunil B.Shukre, Anil S.Kilor
1/5 12-WP-2558.21-Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2558 OF 2021
PETITIONER :- Aditya Birla Finance Limited, having one
of it's office at Shri Shyam Towers, 8th
Floor, A Wing, Sadar, Nagpur-440 001.
Through it's Authorised Officer acting
through one of its Asst. General Manager
having authority to file the application
which includes the authority to verify and
sign the application.
...VERSUS...
RESPONDENTS :- 1. The State of Maharashtra, through it's
Secretary, Ministry of Finance/Revenue
Mantralaya, Mumbai-32.
2. The Collector/District Magistrate,
Nagpur.
3. The Tahsildar, Nagpur.
4. The Commissioner of Police, Nagpur.
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Mr. M. Anilkumar, counsel for the petitioner.
Mr.A.S.Fulzele, Addl.G.P. for the respondents.
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CORAM : SUNIL B.SHUKRE &
ANIL S.KILOR, JJ.
DATE : 28.07.2021.
ORAL J U D G M E N T (Per :Sunil B.Shukre, J.)
Kavita
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Heard learned counsel appearing for the petitioner and learned Addl. GP for the respondents, who appears by waiving notice.
2. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.
3. The grievance is that the order passed by the Larger Bench at Principal Seat at Mumbai on 16.04.2021 is not applicable to the present case, as the order sought to be implemented has been passed on 27.08.2018, under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "SARFAESI Act").
4. It is seen that the order passed under Section 14 of the SARFAESI Act is of the date of 27.08.2018. By this order, respondent No.2 has allowed the application filed by the petitioner and directed the debtors to hand over the possession of the property mentioned in the order. It appears that the possession Kavita ::: Uploaded on - 29/07/2021 ::: Downloaded on - 30/07/2021 02:08:40 ::: 3/5 12-WP-2558.21-Judgment was not handed over by the debtors in view of the interim stay granted by the Debts Recovery Tribunal in the proceedings bearing S.A No. 4 of 2020. But, by the order passed on 02.03.2021, the Securitisation Appeal came to be dismissed and consequently, all the pending interlocutory applications also stood closed. With this final order, the order passed on 27.08.2018 under Section 14 of the SARFAESI Act, by the respondent no.2 came to be revived and it ought to have been complied with by the debtors in this case and it if it was not complied with by the debtors, the secured creditor like the petitioner would acquire a right to obtain it's possession by following due process of law.
5. It is seen that even though no stay is in operation, the possession of the secured assets, as mentioned in order dated 27.08.2018 by the respondent no.2 has neither been handed over to the petitioner nor could be obtained by the petitioner. A notice in this regard has also been issued by respondent No.3 on 22.03.2021, but, for some reason or the other, possession could not be obtained in accordance with law by the respondents on behalf of the petitioner. The learned counsel for the petitioner Kavita ::: Uploaded on - 29/07/2021 ::: Downloaded on - 30/07/2021 02:08:40 ::: 4/5 12-WP-2558.21-Judgment submits that the only reason, why the order dated 27.08.2018, is not being implemented is the order dated 16.04.2021, whereby all orders for eviction/dispossession/demolition have been directed to be kept in abeyance until 07.05.2021 or until further orders and as per the latest date, this order is valid till 13.08.2021. But, he also points out that this order dated 16.04.2021, makes it abundantly clear that the stay on dispossession/demolition/eviction would operate only in those cases where the order for dispossession etc. has been passed subsequent to 09.04.2021 and in the present case, the order of dispossession has been passed prior to 09.04.2021 or to be precise on 27.08.2018.
6. We have carefully gone through the order dated 16.04.2021, the paragraph no.7 of the order being relevant is reproduced as under:-
"7. It is also directed that any order or decree for eviction/dispossession/demolition which might have been passed by any court/tribunal/authority subsequent to April 9,2021 shall remain in abeyance till May 7,2021, unless directed otherwise in the meanwhile. It would be desirable if till May 7, 2021 or until further orders, whichever is earlier, removal Kavita ::: Uploaded on - 29/07/2021 ::: Downloaded on - 30/07/2021 02:08:40 ::: 5/5 12-WP-2558.21-Judgment of encroachers without notice is not resorted to".
7. It would be clear from above, that the order directing the decree or order for eviction/dispossession/demolition to be kept in abeyance is applicable only to those cases, where such order or decree has been passed subsequent to 09.04.2021. In the present case, it is a matter of record that the order of handing over of the possession has been passed under Section 14 of the SARFAESI Act by the Competent Authority on 27.08.2018 and therefore, the order of Larger Bench of this Court passed on 16.04.2021 in suo motu PIL No. 1 of 2021 would have no application to the facts of the present case.
8. Accordingly, Writ Petition is allowed. We direct the respondents to ensure that the order passed by the respondent No.2 under Section 14 of the SARFAESI Act is implemented in accordance with law, as expeditiously as possible.
Rule is made absolute in above terms. No costs.
JUDGE JUDGE
Kavita
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