DINESH GOVIND GHOSTEKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The respondent no. 2 (Equitas Small Finance Bank Ltd.) provided financial assistance to the petitioners for purchase of a flat (the secured asset). It is not in dispute that the petitioners failed to clear their debt and consequently, were served with a demand notice under sec. 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter "the SARFAESI Act ", for short). By such notice, the respondent no. 2 called upon the petitioners to pay Rs.12,23,671.00 with interest as well as penal interest, within 60 (sixty) days. Neither did the petitioners clear their debt nor submit any objection to the demand notice. This resulted in the respondent no. 2 applying before the District Magistrate, Thane under sec. 14 of the SARFAESI Act for facilitating taking over possession of the secured asset. The district magistrate passed an order dtd. 9/8/2019 allowing the application of the respondent no. 2 and appointed the Tahsildar, Bhiwandi to take possession of the secured asset.

(2.) The petitioners have challenged the order under sec. 14 of the SARFAESI Act before the Debts Recovery TribunalIII, Mumbai (hereafter "the DRT-III ", for short) in an application under sec. 17 thereof. However, since the office of the Presiding Officer is vacant, the said application could not be heard. Hence, this writ petition has been instituted seeking an order for appointment of the Presiding Officer of the DRT-III or to appoint any other Debts Recovery Tribunal to decide the said application and till such time the application is finally heard, to restrain the respondent no. 2 and its officers from taking any steps to dispossess the petitioners from the secured asset.

(3.) Since the respondent no. 2 is a private bank, this writ petition may not be maintainable in view of the decision of the Supreme Court dtd. 12/1/2022 in Civil Appeal Nos. 257-259 of 2021 (Phoenix ARC Private Limited vs. Vishwa Bharati Vidya Mandir and Ors.). However, we have entertained this writ petition in view of the order of the Supreme Court dtd. 16/12/2021 in Special Leave Petition (C) No. 10911 of 2021 (State Bar Council of Madhya Pradesh vs. Union of India).