JK S INFRASCTURE PVT LTDQ Vs. EDELWEISS ASSET

JUDGEMENT

(1.) This appeal is filed against the decision of the learned Single Judge dated 15th October, 2012, whereby Chamber Summons No. 1114 of 2012 taken out by the respondent No. 1 has been allowed and the attachment levied by the appellant (original plaintiff) on 14th July 2011 on the immovable property belonging to the respondent No. 2 in execution of a consent decree passed on 6th April, 2011 in Suit No. 1201 of 2011 has been raised. The relevant facts are that from 2006 onwards the respondent No. 2 had availed various credit facilities from the Bank of India ('Bank' for short) for an aggregate amount of Rs. 23 crores by creating various securities in favour of the said bank including a mortgage and charge on the immovable property belonging to the respondent No. 2 viz. Land and building situated at Andheri-Kurla Road, Safed Pool, Village Mohili, Andheri (E), Mumbai-400 072 ('suit property' for short).

(2.) As the respondent No. 2 failed to pay the instalments, the Bank classified the account of the respondent No. 2 as non performing asset with effect from 31st December, 2010 as per the guidelines framed by the Reserve bank of India. Thereafter, the Bank issued notice under Section 13(2) of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('2002 Act' for short) on 31st January 2011 requiring the respondent No. 2 to discharge the liabilities in full within sixty days, failing which the mortgaged property (suit property) belonging to the respondent No. 2 would be sold in auction. As the respondent No. 2 failed to repay the amounts due, the bank took symbolic possession of the suit property on 20th April, 2011 under Section 13(4) of the 2002 Act.

(3.) Thereafter, the respondent No. 1, by a Deed of Assignment dated 12th March, 2012 obtained assignment of all the loans disbursed by the Bank of India to the respondent No. 2. As a result, the respondent No. 1 became a secured creditor, entitled to recover the outstanding to the tune of more than Rs. 20 crores by selling the suit property belonging to the respondent No. 2 under the 2002 Act, which stood attached on issuance of notice dated 31st January, 2011 under Section 13(2) of the 2002 Act and symbolic possession of which was taken by the bank on 20th April, 2011 under Section 13(4) of the 2002 Act.