UNITEX STEELS PVT LTD Vs. BANK OF INDIA

JUDGEMENT

(1.) This writ petition has been filed with a prayer that a writ of mandamus be issued directing the respondents not to take physical possession of the properties, mortgaged by the petitioner with respondents No. 1 and 2. At the time of issuance of notion of motion, following contention of counsel for the petitioner was noticed:

(2.) After notice, reply has been filed. A reading thereof clearly indicates that till the time, when this writ petition was filed, notice of possession, under Rule 8(1) of the Security Interest (Enforcement) Rules, 2002, was not issued. After issuance of notice of motion, notice under the above said provision was issued on September 28, 2006, and possession of the mortgaged property, was taken over, immediately thereafter. We feel the action taken by the respondent Bank is contrary to the law laid down by this Court in Arun Kumar Arora and another v. Union of India & others, 2006(3) Law Hearld (P&H)(DB) 1908, wherein while dealing with the similar situation, a Division Bench of this Court, after taking note of the ratio of the judgment of another Division Bench of this Court in Kalyani Sales Company v. Union of India, 2005(4) Law Herald (P&H)(DB) 801, has observed thus:

(3.) In view of the facts, mentioned above, this Court feels that the respondent Bank was not justified in taking over possession of the mortgaged property after issuing the notice, as has been observed by this Court in Arun Kumar Arora's case (supra). As such taking over of the possession cannot be sustained and the action is quashed. Respondent Bank is directed to return possession to the petitioner forth-with. However, to maintain equity, it is ordered that the petitioner shall deposit the amount, beyond the limit of Rs. 10,00,000/-, with the respondent Bank within two weeks from today, and thereafter may take up the matter with the Bank for regularisation of its accounts. Disposed of.