Bombay High Court
Maharashtra Industrial Development ... vs Union Bank Of India And Ors on 6 March, 2023
Author: Abhay Ahuja
Bench: Nitin Jamdar, Abhay Ahuja
1 403. WP 1930.11.doc
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1930 OF 2011
Maharashtra Industrial Development
Corporation ... Petitioner
V/s.
Union of India and Ors. ... Respondents
with
CIVIL APPLICATION NO. 232 OF 2017
with
CIVIL APPLICATION NO. 2047 OF 2018
with
CIVIL APPLICATION NO. 2048 OF 2018
in
WRIT PETITION NO. 1930 OF 2011
Kalindi Properties Pvt. Ltd. ... Applicant
V/s.
Maharashtra Industrial Development
Corporation and Ors. ... Respondents
with
CIVIL APPLICATION NO. 2546 OF 2018
in
WRIT PETITION NO. 1930 OF 2011
Jogindersingh Isharsingh Vijan,
Director, Nummeries Motors (I) Pvt. Ltd. ... Applicant
V/s.
Maharashtra Industrial Development
Corporation and Ors. ... Respondents
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2 403. WP 1930.11.doc
with
INTERIM APPLICATION NO. 10133 OF 2022
in
WRIT PETITION NO. 1930 OF 2011
Maharashtra Industrial Development
Corporation ... Applicant
V/s.
Union Bank of India through
Authorized Hari Krishnan K. and Ors. ... Respondents
Mr. Prashant Chawan with Rajmani Varma, Meet Vora and Ravindra
Chile i/b. Navdeep Vora and Associates for the Petitioner
Mr. Ziyad Madon with Mr. Hitesh Mishra i/b. Amit Mehta for the
Respondent No.5
Mr. Suresh Kumar for Respondent No.4
CORAM : NITIN JAMDAR &
ABHAY AHUJA, JJ.
DATE : 6 MARCH 2023 P.C. :-
Heard the learned Counsel for the parties.
2. The long chronology of events in this Petition depicts the scenario which is neither conducive to the Petitioner nor the Respondents. The position is that Respondent No.5 is an auction purchaser in the auction conducted by Respondent No. 1 - bank in respect of the property of Respondent Nos. 2 and 3 - the borrowers. Though the auction was held as far back on 10 October 2008, Respondent No.5 - the auction purchaser is yet to be put in ::: Uploaded on - 17/03/2023 ::: Downloaded on - 09/06/2023 04:26:56 ::: 3 403. WP 1930.11.doc possession. The Petitioner - Maharashtra Industrial Development Corporation, a statutory body has been directed by the impugned order to forego sub-letting charges in respect of the plot which was put to auction by the borrowers without seeking permission of the Corporation. It is informed that the sub-letting charges as on date are approximately Rs.37.00 crores. To add, the third parties are in physical possession, who according to the Petitioner and Respondent No.5, are a trespassers. An intervention application is filed by a third party in this Petition. The Interverner has also filed a Civil Suit bearing No. 1229 of 2017 in the City Civil Court, Mumbai and there is an interim order protecting its possession.
3. The main contention of the Petitioner - MIDC is that the Petitioner grants lease in respect of the plot within its jurisdiction and for changes in the lease deed, permission of the Petitioner - Corporation is necessary and a stranger cannot be foisted on the Petitioner - Corporation. This contention is being taken by the Petitioner through out in this proceedings and is being urged before us in this Petition. At one time, the Petitioner - Corporation had given offer to waive certain part of the sub-letting charges which, according to the Petitioner, was not accepted by the Respondent No.1. According to Respondent No.5, the sub-letting charges are not payable after the sale certificate was issued in favour of the Respondent No.5 and, particularly, when the Respondent No.5 is not in possession.
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4. The learned Counsel for the Respondent No.5 states that the payment directed in the impugned order has been made by the Respondent No.5 and that since the sale certificate is issued, the sub-letting charges are not payable and therefore, the Petitioner has to comply with the impugned order and hand over the possession of the plot to Respondent No.5.
5. As regards the need for taking back the possession of the plot is concerned, the Petitioner and Respondent No.5 are ad idem. The Respondent No.5 is not a party in the suit filed by the Intervener in the City Civil Court. According to us, till the actual possession is received either by the Petitioner or by Respondent No.5, a debate in this Petition over monetary liability would be an academic exercise.
6. The Respondent No.5 has taken out a Civil Application bearing No. 2048 of 2018 for appointment of a Court Receiver under these circumstances. We have perused the prayers and the averments in this Civil Application. As regards the appointment of Receiver is concerned, we cannot ignore the fact that the third party/intervener has filed a Civil Suit which is pending since the year 2017 in which there is an interim order. Appropriate course of action thus would be to permit Respondent No.5 to intervene in the Civil Suit No. 1229 of 2017 by making an application to the concerned Civil Court. After such Intervention Application is made, ::: Uploaded on - 17/03/2023 ::: Downloaded on - 09/06/2023 04:26:56 ::: 5 403. WP 1930.11.doc it is open to Respondent No.5 to pray for vacating the interim order or such other orders including appointment of Receiver, etc.
7. Prima facie, the Respondent No.5 has enough cause to be aggrieved, being affected by the grant of interim order to be made as party defendant in the Suit filed by the intervener and for praying for vacating the interim order on its merits.
8. If a prayer is made by the Respondent No.5 for intervention in the Civil Suit and vacating the interim order, the concerned Court will take up the proceedings at the earliest and decide the same as per law. The learned Counsel for the Petitioner states that the Petitioner is also keen that the Suit filed by the intervener is disposed of early and for vacating the interim order and, therefore, as far as prayer for intervention and for vacating the interim order, if made by Respondent No.5, for that limited extent, the Petitioner will not have any objection.
9. As regards the contention of Respondent No.5 that the third party- trespasser is only in respect of the plot in question and the civil suit does not make any such distinction, the learned Counsel for Respondent No.5 states that a separate application would be taken out with a prayer for part of the plot which is free of any encroachment. Accordingly, we dispose of Civil Application No. 2048 of 2018 with above observations.
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10. We defer the hearing of the Writ Petition to 19 June 2023. To be listed under the caption "For Directions".
ABHAY AHUJA, J. NITIN JAMDAR, J.
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