YUKTA MOOKHEY Vs. BANK OF INDIA

JUDGEMENT

(1.) One Harmonics Fabrics Fashions Ltd. is the defaulting borrower of respondent No. 1-Bank to the tune of Rs. 56 lakhs which amount, with interest, has risen to Rs. 88 lakhs. Respondent No. 2, Sanjivani Properties Pvt. Ltd. , was the guarantor in respect of the said amount and had mortgaged their flat at 401, 2-A, Excellency Co-op. Housing Society Ltd. , Lokhandwala Complex, Andheri (West) , mumbai--400 053, in favour of respondent No. 1-Bank by depositing the title deeds way back in the year 1995. Since the amount was not refunded, respondent No. 1-Bank sent a notice to both these companies under section 13 (2) of the Securitisation and Reconstruction of Financial assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "securitisation Act") for selling the said flat for recovery of the dues. Respondent No. 1-Bank sent a notice to the petitioner on 25.1.2003 since she was in possession of the said flat.

(2.) Thereafter, on filing an application before the concerned Magistrate under section 14 of the securitisation Act, possession notice was issued under the prescribed form in Appendix IV under rule 8 (1) of the security Interest (Enforcement) Rules, 2002. The said notice was addressed to Sanjivani Properties Pvt. Ltd. and was pasted on the secured premises on 15.6.2004. Being aggrieved by that notice, the petitioner herein filed an appeal to the Debt Recovery Tribunal under section 17 of the Securitisation Act. The appeal was dismissed and a further appeal was carried to the appellate Tribunal under section 18 (1) of the securitisation Act. The DRAT dismissed that appeal by observing that the petitioner was not in occupation of the flat under a valid leave and licence agreement and that the same had been revoked by herself, by her notice dated 18.8.2003 addressed to the licensor Sanjivani Properties pvt. Ltd. It is this decision of the DRAT dated 11.7.2005 which is sought to be challenged in this Writ petition.

(3.) Amongst other submissions, the petitioner contends that the Securitisation Act does not consider the position of a third party in possession of the secured premises and that sections 13 and 14 (3) thereof are ultra vires the constitution.