Bombay High Court
Shaikh Mehmood Shaikh Bibhan vs The Authorized Officer on 13 January, 2011
Author: D. Y. Chandrachud
Bench: D. Y. Chandrachud, Anoop V. Mohta
1 WP-L-1618-10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1618 OF 2010
Shaikh Mehmood Shaikh Bibhan ..Petitioner
versus
The Authorized Officer, Narayan G. Mendon
The Mogaveera Co-operative Bank Ltd. & Ors. ..Respondents
Mr. R. G. Panchal with Mr. A. R. Metkari for Petitioner.
Mr. S. A. Oak i/b. Mahesh Menon & Co. for Respondent Nos. 1 and 2.
CORAM : DR. D. Y. CHANDRACHUD &
ANOOP V. MOHTA, JJ.
13 January 2011.
ORAL ORDER :
The Petitioner has challenged the legality of a notice issued on 16 June 2009 by the First Respondent under Section 13(2) of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002. By the notice the Petitioner has been informed by the bank of having taken symbolic possession of a residential flat. The Petitioner claims to have purchased the flat from the Third Respondent at ::: Downloaded on - 09/06/2013 16:45:40 ::: 2 WP-L-1618-10 and for a consideration of Rs.15 lacs on 7 November 2007. The case of the Petitioner is that on 4 January 2008 the Petitioner allowed the Third Respondent to reside in the flat by executing a Leave and Licence Agreement for a period of eleven months which was extended for an equivalent period on 5 January 2009. The Petitioner alleges that he took possession on 5 November 2009. On 19 November 2009 the Third Respondent is alleged to have executed an affidavit cum declaration stating that though he had sold the flat to the Petitioner he had not transferred his membership in the Cooperative Society in favour of the Petitioner. The Third Respondent allegedly stated that during the period of the Leave and Licence Agreement, he had taken a loan without informing the Petitioner.
According to the Petitioner in January 2010 he was informed by the members of the Cooperative Society that symbolic possession of the flat was taken by the First and Second Respondents under the Securitisation Act. In the Affidavit in Reply filed on behalf of the bank it has been stated that the Third Respondent had approached the bank for a mortgage loan facility in the amount of Rs.7 lacs. The Bank extended the loan to the Third Respondent against a mortgage in respect of the residential flat which is a secured asset. Accordingly a letter of sanction was issued by the bank on 23 February 2006. The Third Respondent had executed various Agreements ::: Downloaded on - 09/06/2013 16:45:40 ::: 3 WP-L-1618-10 with the bank in February and March 2006. The Third Respondent is stated to have deposited the title deeds of the flat with the bank with an intent to create an equitable mortgage by deposit of title deeds. The bank therefore claims to be a secured creditor. Initially the bank issued a notice under Section 13(2) on 10 September 2008. Thereafter a notice under Section 13(4) was issued on 29 April 2009. The notice has been impugned in these proceedings.
2. The Petitioner as a third party would fall within the description of "any person" within the meaning of Section 17 of the Securitisation Act. If the Petitioner is aggrieved by a measure taken by the bank under Section 13(4) his recourse would be to an appellate remedy before the Debt Recovery Tribunal under Section 17. However, it has been sought to be urged on behalf of the Petitioner that the bank in question is a Cooperative Bank governed by the provisions of the Maharashtra Cooperative Societies Act 1960. Hence, it has been submitted that the remedies under the Securitisation Act would not be available to a Cooperative Bank.
3. The issue which is sought to be raised on behalf of the Petitioner is not res integra. In so far as this Court is concerned the issue stands ::: Downloaded on - 09/06/2013 16:45:40 ::: 4 WP-L-1618-10 concluded by the Judgment of a Division Bench in M/s. Khaja Industries & etc. vs. State of Maharashtra & Anr. etc.1. The same view was reiterated in a subsequent Division Bench Judgment of this Court in M/s.
Rama Steel Authorities & Ors. vs. Union of India & Anr. 2 A Division Bench of the Madras High Court has also held that the remedies under the Securitisation Act are available to a Cooperative Bank in Raj Kumar Khemka vs. Union of India & Ors.3 The Kerala High Court has also adopted the same view in a Judgment of a Division Bench in George Kutty Abraham & Ors. vs. Secretary Kottayam District Co-operative Bank Ltd. & Ors.4 .
4. However, it is sought to be urged on behalf of the Petitioner, while relying upon the judgment of the Supreme Court in Greater Bombay Co-
op. Bank Ltd. vs. United Yarn Tex (Pvt) Ltd. & Ors.5, that the remedy under The Recovery of Debts Due to Banks and Financial Institutions Act 1993 was held not to be available to a Co-operative Bank governed by State Cooperative Legislation. The Judgment of the Supreme Court has been referred to in the judgment of the Division Bench of this Court in Khaja 1 2007(5) AIR Bom R 722 2 AIR 2008 Bombay 38 3 AIR 2009 Madras 143 4 AIR 2008 Kerala 137 5 AIR 2007 SC 1584 ::: Downloaded on - 09/06/2013 16:45:40 ::: 5 WP-L-1618-10 Industries. But that apart, there is a crucial difference in the language of the Securitisation Act as compared to the provisions of the RDB Act. In the RDB Act the definition of the expression "bank" in Section 2(d) extends to five categories, namely, a banking company, a corresponding new bank, the State Bank of India, a subsidiary bank or a Regional Rural Bank. When Parliament enacted the Securitisation Act 2002 the expression 'bank' was defined in Section 2(c) to cover in clauses (i) to (iv), the first four categories as referred to in Section 2(d) of the RDB Act. However, sub clause (v) of clause (c) of Section 2 of Securitisation Act extends the definition to such other bank which the Central Government may by notification specify for the purpose of the Act. The Central Government has issued a Notification dated 28 January 2003 expressly bringing in, within the purview of the expression 'bank', a cooperative bank as defined in clause cc (i) of Section 5 of the Banking Regulation Act, 1949. The provisions of the Securitisation Act, have been held in Transcore vs. Union of India & Anr.1 by the Supreme Court to provide an additional remedy. Hence, Cooperative Banks have been specifically brought within the purview of the Securitisation Act by virtue of the definition which was introduced in Section 2(c)(v) and in terms of the Notification of the Central Government dated 28 January 2003.
Section 17 of the Securitisation Act confers an appellate remedy on any 1 2008 1 SCC 125 ::: Downloaded on - 09/06/2013 16:45:40 ::: 6 WP-L-1618-10 person which is wide enough to include a person in the position of the petitioner.
5. For these reasons, we do not find any reason to interfere in the exercise of the writ jurisdiction under Article 226. All the issues and facts which have been sought to be raised by the Petitioner can appropriately be enquired into by the Tribunal in an appeal under Section 17.
6. The Petition is accordingly dismissed.
7. Stay refused.
(Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.) ::: Downloaded on - 09/06/2013 16:45:40 :::