Appeal No. 54 of 2004. Case: Bharatbhai Kamalshi Mehta and Anr. Vs The Kapol Co-operative Bank Ltd. and Anr.. Mumbai Debt Recovery Tribunals

Case NumberAppeal No. 54 of 2004
CounselFor Appellant: R.D. Dave, Adv., i/b., N.N. Vaisnawa & Co. and For Respondents: S.G. Rajput, Adv. for Respondent No. 1
JudgesK.J. Paratwar, Presiding Officer
IssueSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 11, 13(2), 13(4), 14, 14(1), 14(3), 17 and 17(1); Security Interest (Enforcement) Rules, 2002 - Rule 3
CitationI (2006) BC 127
Judgement DateMay 09, 2005
CourtMumbai Debt Recovery Tribunals


K.J. Paratwar, Presiding Officer

1. The residential property being Flat No. 203-A, Amit Darshan Co-operative Housing Society Ltd., Bajaj Road, Vile Parle (W), Mumbai 400056 is involved in this Appeal under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SRFAESI Act'),

2. The appeal has second time come up before this Tribunal. The first round ended with this Tribunal's judgment dated 10.9.2004 dismissing the appeal since not maintainable on the ground that (i) impugned order dated 16.4.2004 passed by learned Chief Metropolitan Magistrate (C.M.M.), Mumbai in C.C. No. 39/Misc/2004 under Section 14 of the SRFAESI Act in respect of possession cannot be challenged in law; (ii) recourse to Section 13(4) of the SRFAESI Act was not taken. On 5.3.2005 said order is set aside by Hon'ble Division Bench of Parent High Court in Notice of Motion No. 106 of 2005 with Writ Petition No. 3190 of 2004 with observation that the question of non-receipt of notice by the appellants under Section 13(2) of the SRFAESI Act shall be looked into.

3 In the appeal memo, the appellants, who are inter se husband and wife, have contended several facts viz. filing O.A. No. 254 of 2003 for recovery of Rs. 1,10,10,320/-, payments made from time-to-time by filing of writs in the Hon'ble High Court of Judicature at Bombay, etc. which (facts) however are not material within the ambit and scope of this appeal. The facts which constitute grounds of appeal proper are that the appellants did not receive any notice under Section 13(2) of the SRFAESI Act. Suddenly, however, on 22.5.2004 a letter from the Deputy Registrar, C.M.M., Mumbai was received in respect of taking possession of the flat. It is also contended that the proceedings before C.M.M. were also not served upon the appellants. Thus, the appellants were not given opportunity either by the Bank or by C.M.M. of presenting their case. Therefore, this appeal for quashing order passed by learned C.M.M. on 16.4.2004. By the amendment letter dated 15/21.2.2005 issued by the Deputy Registrar, C.M.M., Mumbai in respect of the possession is also challenged. The purported notice under Section 13(2) of the SRFAESI Act dated 10.7.2003 is also sought to be quashed.

4. By reply (Exh. 9) in the nature of affidavit of Mr. R.P. Satam, the respondent No. 1 contended that the Act of the C.M.M., Mumbai cannot be challenged in view of the...

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