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2016 DIGILAW 2082 (BOM)

Sunil Jaidev Sharma v. State of Maharashtra

2016-11-21

A.S.GADKARI, ANOOP V.MOHTA

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JUDGMENT : Anoop V. Mohta, J. Heard the learned counsel appearing for the parties finally. 2. We are inclined to dispose of the present writ petition as a remedy under the The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act) is available to challenge impugned order dated 27 September 2016 passed by the learned Chief Metropolitan Magistrate, Esplanade, Mumbai in Misc. Application No. 513/MISC/2016 in Securitisation Application No. 420/SA/2013 and notice dated 24 October 2016 issued by the Court Commissioner pursuant to the said order. 3. Admittedly, the Petitioner is the “third person” being neither borrower nor guarantor nor mortgagor. Section 17 (3) of the SARFAESI Act which is amended by Act No.44 of 2016 with effect from 1.9.2016 provides as under : “17 Application against measures to recover secured debts – (1) Any person (including borrower), aggrieved by any of the measures referred to in subsection (4) of section 13 taken by the secured creditor or his authorised officer under this Chapter …..... (2) ….. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in subsection (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may......” (emphasis added) 4. The term “any person” as mentioned in Section 17 which includes any third person like the Petitioner who is aggrieved by any measure referred in Sections 13 (4) & 14 of the SARFAESI Act, taken by the secured creditor/financial institution. Even otherwise, Section 14 independently cannot be invoked unless the measure is taken under Section 13 of the SARFAESI Act. The Petitioner’s challenge, therefore, to the impugned order including the action so initiated is required to be made by following the above amended provisions. 5. The learned counsel appearing for Respondent No.2 concedes to this position that the Petitioner has a remedy under Section 17(3) of the SARFAESI Act. 6. The Petitioner’s challenge, therefore, to the impugned order including the action so initiated is required to be made by following the above amended provisions. 5. The learned counsel appearing for Respondent No.2 concedes to this position that the Petitioner has a remedy under Section 17(3) of the SARFAESI Act. 6. After considering the rival contentions as well as the provisions so read and referred, in the facts and circumstances of the case, we are permitting the Petitioner to withdraw this Petition, with liberty to invoke the appropriate provisions within two weeks from today. There is no point in keeping such matter pending in High Court, as early disposal is a must to achieve the object of the SARFAESI Act. 7. This Court (Vacation Judge), on 11.11.2016, after hearing the parties has granted an interim protection, “Not to be dispossessed till 18.11.2016 if not already dispossessed.”. The statement is made by the learned counsel appearing for the Petitioner that the residential flat at Goregaon has already been taken possession of, by the Respondent. The other property situated at Santacruz is still in the custody of the Petitioner. The submission, even if any, revolving around the property of which the possession is already taken, under which circumstances, may be considered by the Appellate Authority in accordance with law. Therefore, the protection so granted on 11.11.2016, is extended for two weeks from today. The Tribunal to decide the matter uninfluenced by the order passed by the Court. 8. The writ petition is accordingly disposed of as withdrawn. 9. No costs.