Gujarat High Court
M/S Garden Club Private Ltd vs State Of Gujarat & 2 on 31 August, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/13912/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13912 of 2015
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M/S GARDEN CLUB PRIVATE LTD., & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ASIM J PANDYA, ADVOCATE FOR MR K S CHANDRANI, ADVOCATE for the
Petitioner(s) No. 1 - 2
MS SHRUTI PATHAK, ASSISTANT GOVERNMENT PLEADER for Respondent No. 1 and 2
MR PUNIT B JUNEJA, ADVOCATE for Respondent(s) No. 3
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 31/08/2015
ORAL ORDER
1. Learned advocate for the petitioners has moved a Draft Amendment dated 31.08.2015. The same is granted and may be carried out on, or before, the next date of hearing.
2. In the present petition, the petitioners have made the following prayers:
"(A) To issue an appropriate writ, order or direction to quash and setaside the order dated 21.08.2015 AnnexureA passed by the Mamlatdar and Executive Magistrate, Rajkot Page 1 of 9 HC-NIC Page 1 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER Taluka.
In the alternate (A) This Hon'ble Court may be pleased to restrain respondents Nos.2 and 3, their servants and agents from taking over the physical possession of the properties in question from the petitioners until the appeal being 81 of 2015 filed by the petitioners before the Debt Recovery Appellate Tribunal, Mumbai, against the order dated 27.01.2015 passed in S.A. No.53 of 2014 passed by Debt Recovery TribunalII, Ahmedabad is finally disposed of by the said Tribunal.
(B) To issue an appropriate writ, order or direction to quash and setaside the order dated 21.04.2015 AnnexureB passed by the DRAT Mumbai and further be pleased to restrain respondent Nos.2 and 3, their servants and agents from transferring, selling or alienating the properties in question to anyone by public auction or in any other manner until the appeal being 81 of 2015 filed by the petitioners before the Debt Recovery Appellate Tribunal, Mumbai against the order dated 27.01.2015 passed in S.A. No.53 of 2014 passed by Debt Recovery TribunalII, Ahmedabad is finally disposed of by the said Tribunal.
Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER (C) Pending admission and final
disposal of this petition this Hon'ble Court may be pleased to direct the respondent Nos.2 and 3, their servants and agents to maintain status quo as regards the property in question.
(D) Adinterim relief in terms of para 8(C) may kindly be granted"
3. By a Draft Amendment dated 31.08.2015, the petitioners have added two more prayers in the petition, apart from certain proposed amendments to the memorandum of the petition. The amended prayers read as under:
"(8.E) This Hon'ble Court be pleased to quash and set aside the order dated 27.08.2015 in Appeal No.81 of 2015, passed by DRAT, Mumbai, in the interest of justice;
(8.F) Pending admission and final hearing, this Hon'ble Court be pleased to stay the operation and execution of the order dated 27.08.2015 in Appeal No.81 of 2015 passed by DRAT, Mumbai, in the interest of justice."
4. It is submitted by Mr.Asim J.Pandya, learned advocate for Mr.K.S.Chandrani, learned advocate Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER for the petitioners, that the amendment to the petition has been necessitated as it was submitted by Mr.Punit B.Juneja, learned advocate for the respondent No.3, Allahabad Bank, as recorded in the order dated 28.08.2015, passed by this Court, that the appeal preferred by the petitioners before the Debt Recovery Appellate Tribunal, Mumbai ("DRAT, Mumbai"), has been rejected on 27.08.2015.
5. Neither of the learned counsel for the respective parties have produced a copy of the order dated 27.08.2015. According to the learned advocate for the petitioners, the said order has not been signed by the DRAT, Mumbai.
6. It is submitted by the learned advocate for the petitioners that pursuant to the notice dated 21.08.2015, the respondentBank is to take possession of the property of the petitioners on 01.09.2015, that is, tomorrow. That, the appeal of the petitioners preferred before the DRAT has been rejected as the petitioners did not pay the amount of Rs.2,88,00,000/ (Rupees two crores Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER eighty eight lakhs only) as per Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("SARFAESI Act"). It is submitted that the petitioners are entitled for adjudication of the appeal on merits and it is only due to the dire financial condition of the petitioners that the amount could not be deposited.
7. Mr.Asim J.Pandya, learned advocate for the petitioners states, upon instructions from the Director of the petitionerClub, who is present inperson, that the amount of Rs.2,88,00,000/ (Rupees two crores eighty eight lakhs only), shall be deposited by the petitioners before the DRAT, Mumbai, on, or before, 30.09.2015, and, in the event of such deposit, the appeal of the petitioners may be heard on merits.
8. On the other hand, Mr.Punit B.Juneja, learned advocate, who has appeared for the respondent Bank, on caveat, submits that the conduct of the petitioners is required to be seen. Earlier, a Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER OneTime Settlement was entered into between the petitioners and the respondentBank in which, a payment schedule had been indicated. However, against the total outstanding of over rupees six crores at that point of time, the petitioners paid only an amount of Rs.5,000/ (Rupees five thousand only). It is further, submitted that the respondentBank has incurred expenses for police protection during the proceedings under Section 14 of the SARFAESI Act, and if the taking over of possession is deferred, further expenditure would be incurred by the Bank.
9. Learned advocate for the petitioners, states upon instructions, that the expenditure incurred by the respondentBank for police protection would be made good by the petitioners.
10. Although a copy of the order of the DRAT, Mumbai, rejecting the appeal of the petitioners has not been produced by either of the parties, it is stated by the learned advocate for the respondentBank that the order dated 16.04.2015, which is an interim order, initially challenged Page 6 of 9 HC-NIC Page 6 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER in the petition, is selfevident, inasmuch as it is mentioned in the said order that the amount of Rs.2,88,00,000/ (Rupees two crores eighty eight lakhs only), would have to be paid by the petitioners within the period of time stipulated in the said order and, as this has not been done by the petitioners, the appeal has been dismissed.
11. Learned advocate for the petitioners submits that some time may be granted in order to produce a copy of the order passed by the DRAT, Mumbai, dismissing the appeal, as the said order has been challenged by the petitioners by way of the Draft Amendment. As, it is stated on behalf of the petitioners that the said order has not yet been signed by the DRAT, Mumbai, this Court is of the view that the interest of justice would demand that an opportunity to produce and challenge the said order, which was pronounced in the open Court as per the information supplied by the learned advocate for the respondentBank, ought not to be denied to the petitioners. To this end, the hearing of the Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Sep 01 01:13:45 IST 2015 C/SCA/13912/2015 ORDER petition is adjourned with the hope that the order of the DRAT, Mumbai, would have been signed by then, and produced before this Court. Hence, the following order is passed:
Issue Notice returnable on 03.09.2015.
The respondents shall not take over the possession of the property of the petitioners, till then.
Ms.Shruti Pathak, learned Assistant Government Pleader, waives service of Notice for respondents Nos.1 and 2.
Mr.Punit B.Juneja, learned advocate, waives service of Notice for respondent No.3.
12. Learned advocate for the respondentBank may indicate, on the next date of hearing, the expenses incurred by the Bank for police protection so that the petitioners can be asked to pay the said amount.
13. Direct Service of this order, today, is permitted.
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