State Bank of India v. State of Maharashtra

ORDER

(A) The Writ Petition is partly allowed.

(B) The Respondent No.2/The Tahsildar, Jalna is directed to execute the order passed by the respondent No.1/The District Collector, Jalna and restitute the possession of the secured assets to the petitioner within a period of thirty (30) days from the date of this order. ( C ) The Respondent Nos. 5 & 6 shall deposit the cost of Rs.25000/- within 30 days of this order in this Court failing which those shall be recovered as land revenue."

¶13Considering the law laid down by the Division Bench of this Court and referred to by us above in Kotak Mahindra Bank Ltd.

(supra), we are unable to agree with the submission made by the learned AGP that the District Magistrate does not have the power to re-exercise his own order or that he has become functus officio. If we were to take the view as propounded by the learned AGP it would lead to a complete chaos. We have no hesitation in stating that the borrowers have devised a novel, unimaginable and unsustainable modus operandi to defeat the ends of justice. It is not only the matter of physical altercation by assaulting the security guard appointed by the Petitioner Bank and breaking open the lock and seal affixed on the secured asset which is wholly illegal, but the same would also tantamount to an assault on the law and the statute itself. If, after orders are passed under section 14 of the SARFAESI Act, 2002, for dispossession of the borrower, and the same are inter-meddled with by any person including the borrower, the same would result in a mockery of the rule of law. In such a situation the Court cannot and should not remain a mute spectator and allow the illegality to continue. The tendency of trying to overreach the law as well as the orders passed by Judicial Authorities has to be nipped in the bud right away, lest the rule of law shall suffer.

¶5Considering the law laid down by this Court and the totality of the facts and circumstances of the present case, the following order is passed:- a) Respondent No.2 [The Court Commissioner], with the assistance of the Senior Police Inspector, Goregaon Police Station, shall take physical possession of Flat Nos. 102, 601, 901 located on the 1st Floor, 6th Floor and 9th Floor of the Building called "Dev Kripa Enclave", L. T. Road No.1, MG Road, Goregaon (W), Mumbai-400062, on 24th January, 2024 at 11.00 am.

b) For the purpose of taking physical possession, the concerned Senior Police Inspector, Goregaon Police Station, shall give all necessary assistance to the Court Commissioner [including deputing adequate number of police personnel] to ensure that Respondent No.2 [the Court Commissioner] is able to take physical possession of the flats mentioned above, and thereafter, handed over the same to the authorized officer of the Petitioner-Bank, failing which, the concerned Senior Police Inspector shall be liable for contempt. c) The authorized officer of the Petitioner-Bank is also directed to remain present at site on 24th January, 2024 at 11.00 am, so that physical possession of the said flats can be handed over by Respondent No. 2 [the Court Commissioner] to the Authorized Officer of the Petitioner-Bank

¶6The above Writ Petition is disposed of in the aforesaid terms. It is purely out mercy that we do not impose any cost on Respondent Nos. 4, 5 and/or 6. Hence, there shall be no order as to costs.

¶7Though we have disposed of the above Writ Petition, we place the same on board on 25th January, 2024 for reporting compliance.

¶8This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [ SOMASEKHAR SUNDARESAN, J.] [ B. P. COLABAWALLA, J.]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 289 OF 2024 State Bank of India .. Petitioner Versus State of Maharashtra & Ors. .. Respondents Mr. Sidharth Samantarey a/w Ravindra Bhosale i/b. Vivek Sawant for the Petitioner. Mr. A. I. Patel, Addl. GP a/w. R. S. Pawar, AGP for the Respondent- State. Mr. Daljeet Singh Lall for the Respondent Nos. 4 to 6. CORAM : B. P. COLABAWALLA & SOMASEKHAR SUNDARESAN, JJ. DATE : JANUARY 17, 2024 P. C. 1. The above Writ Petition is filed seeking direction to Respondent Nos. 1 to 3 to take appropriate steps for taking possession of the subject property being Flat Nos. 102, 601, 901 located on the 1st Floor, 6th Floor and 9th Floor at Building "Dev Kripa Enclave", L. T. Road No.1, MG Road, Goregaon (W), Mumbai-400062. This relief is sought on the basis that though an order under Section 14 of the SARFAESI Act, 2002, was passed and physical possession was thereafter handed over to the Petitioner-Bank, the borrowers, LAXMI SUBHASH SONTAKKE Date: 2024.01.18 17:29:00 +0530 namely, Respondent Nos. 4, 5 and/or 6 have illegally, and by taking the law into their own hands, dispossessed the Petitioner-Bank and re-entered the subject property. 2. The learned Counsel appearing for Respondent Nos. 4 , 5 and/or 6 sought to justify the actions of the said Respondents on the basis that they have made a complaint to the Centralized Public Grievance Redressal and Monitoring System Portal on 22nd September, 2023. According to Respondent Nos. 4, 5 and/or 6 no monies are payable by the said Respondents to the Petitioner-Bank inter-alia by relying upon the provisions of the Indian Coinage Act, 1906 and that the banking system being unconstitutional and imbalanced, all the commercial Banks of India have an exploitative and unconstitutional interest as everyone knows that the paper currency in circulation of the country is only being used by Reserve Bank of India and which money does not reach the public. The further allegation in the complaint is that commercial banks and financial companies have printed some monies out of thin air, registered it on the bank passbook, and made it available to the loan holder in the form of loan. Another fanciful allegation made is that the total circulating paper currency in the country is less than the principal amount of loans distributed by the banks/finance companies. 3. We find that the justification given by Respondent Nos. 4, 5 and/or 6 is wholly without any merit. Even assuming for the sake of argument that Respondent Nos. 4, 5 and 6 do not owe any money to the bank because the same has been allegedly paid, does not permit them to take the law into their own hands and dispossess the Petitioner-Bank after an order under Section 14 of the SARFAESI Act, 2002 is passed and possession of the concerned flats has been handed over to the Petitioner. There is something called the rule and law in this country and has to be followed by every citizen. If Respondent Nos. 4, 5 and/or 6 were aggrieved by the actions taken by the Petitioner-Bank, including taking physical possession of the subject flats, remedies were available to them to undo that action. Instead availing of those remedies, Respondent Nos. 4, 5 and 6 have taken the law into their own hands. This certainly cannot be permitted. 4. This issue is no longer up for debate because in several judgments of this Court, where the borrowers have taken the law into their own hands and dispossessed the Banks/Financial Institutions [who have obtained orders under Section 14 of the SARFAESI, 2002], have been ordered to vacate their respective premises and restore possession back to the Bank/Financial Institution. For the sake of convenience, we refer to the decision of this Court in the case of RBL Bank Ltd. Vs. State of Maharashtra and Ors [Writ Petition No. 7058 of 2023 on 7th August, 2023]. The relevant portion of this decision is at paragraph 12 and 13 thereof the said decision which reads thu