SHAIKH MOHAMMAD TAUFIQUE Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) Mr.Sikchi, learned advocate for the petitioners submits that the petitioners are challenging the order dtd. 23/12/2021 passed by the Debt Recovery Tribunal, Aurangabad (for short, "D.R.T. ") in S.A. No.199/2021 and I.A. No.1213/2021, whereby the D.R.T. has refused to stay the proceedings initiated against the property of the petitioners. The learned advocate further submits that, the petitioners are neither borrowers, mortgagors or guarantors to the loan transaction. They have not received any notice in the said proceedings in respect of suit property. The urgency is that the respondents are taking forcible possession of the suit property of the petitioners on 27/12/2021 without following procedure and if respondents succeed in the same, then the irreversible loss will be caused to the petitioners. He submits that as per section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (For short, "SARFAESI Act "), there is no provision or power to restore the possession to third party. Hence, requested to stop the respondent no.1 from taking possession of the suit property.

(2.) The learned advocate for the petitioners further submits that the petitioners have purchased the property i.e. plot no.L-31 admeasuring 20000 Sq. Fts, M.I.D.C., Chikalthana Industrial Area, Aurangabad (for short, "suit property ") in the year 2008. They were not aware about the loan transaction of respondent no.3 with respondent no.1 - Bank. When they came to know about this transaction, the petitioners have filed Civil Suit in Civil Court, which is pending. The half portion of the property is in possession of the petitioners. In 2015, the respondent no.1 - bank has shown that the possession is taken of the suit property, which is incorrect. The said possession is taken only on the paper. The petitioners are in actual possession of the suit property. The learned advocate further submits that, the section 14 of the SARFAESI Act was executed in 2015. The SubDivisional Officer has no power to pass the order under section 14 of the SARFAESI Act. The learned Advocate relied upon the judgment of Hon 'ble Apex Court in the case of Harshad Govardhan Sondagar V/s International Assets Reconstruction Company Limited and others reported in (2014) 6 SCC 1 , judgment of the High Court of Gujarat at Ahmedabad in Special Civil Application No.12632/2013 dtd. 17.09.2013 and also judgments of this Court at Principal Seat in the cases of Bank of Bahrain and Kuwait B.S.C. Vs Union of India and others in Writ Petition no.24293 of 2021, decided on 2 nd December, 2021 and IIFA Retail Private Limited V/s Abhyudaya Co.op Bank Ltd. And others in Writ Petition (L) No.392/2015 decided on 25 th February, 2015.

(3.) The learned Additional Government Pleader submits that the respondent - Bank is the real contesting party to whom the notice has not been served by the petitioners. The matter is subjudice before the D.R.T. He further submits that the petitioners are seeking relief against the order of money proceedings then the petitioners have to deposit the amount. He further submits that the possibility cannot be ruled out of collusion in between the petitioners and borrowers. Hence, the hearing of the Bank side is must. So also the petitioners have filed Civil Suit before the Civil Court.