S.A. No. 14 of 2005. Case: Haresh Rasiklal Shah Vs Small Industries Development Bank of India and Anr.. Mumbai Debt Recovery Tribunals

Case NumberS.A. No. 14 of 2005
CounselFor Appellant: D.D. Madan, Adv., i/b., Vimadalal & Co. and For Respondents: Satish Shetye, Adv., i/b., PRakash Panjabi & Co. for the Respondent No. 1
JudgesK.J. Paratwar, Presiding Officer
IssueSecuritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 17; Limitation Act, 1963 - Section 5
CitationIII (2005) BC 157
Judgement DateMarch 29, 2005
CourtMumbai Debt Recovery Tribunals

Judgment:

K.J. Paratwar, Presiding Officer

  1. The Flat No. 61 on the 6th Floor, 'A' Wing, in the building "Tahnce Heights Co-operative Housing Society Ltd.", Petit Hall, 66, Nepean Sea Road, Mumbai-400006 is the subject matter of this application under Section 17 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short "SARFAESI Act").

  2. The respondent No. 2 is the owner of the flat mortgaged for securing certain loan/ credit facilities (present outstanding being about Rs. 20 crores) to the respondent No. 1.

  3. The foundation of the applicant's case is that he is in occupation of the Hat as tenant on the basis of Tenancy Agreement dated 1.5.1999 paying rent of @ Rs. 20,000/- per month against the Rent Receipts. There was also Supplementary Agreement dated 10.5.1999 between the applicant and respondent No. 2. The applicant has filed R.A.D. Suit No. 132 of 2004 in the Hon'ble Small Causes Court at Mumbai in which the Court has been pleased to pass injunction order dated 25.1.2005.

  4. It is the applicant's case that the respondent No. 1's Officers had visited (date not mentioned) the flat for the purpose of taking possession. It is now a common ground that on 9.1.2004 the respondent No. 1 had taken symbolic possession. The applicant's further case is that he had informed the respondent No. 2 about the visit of the respondent No. 1's Officers who told that Writ Petition challenging the Bank's action was filed in the Hon'ble High Court of Judicature at Bombay. The respondent No. 2 subsequently informed the applicant about the disposal of said Writ Petition pursuant to judgment of the Apex Court in case of Mardia Chemicals Ltd. and Ors. v. Union of India and Ors.,II (2004) BC 397 (SC), and also about filing of appeal against the respondent No. 1 before this Tribunal, carrying it in the Appellate Tribunal and ultimately in the Hon'ble High Court 6f Judicature at Bombay. The applicant stats that the respondent No. 2 also informed the applicant that he is proposing to file Special Leave Petition in the Hon'ble Supreme Court of India. It is in these circumstances, which according to the applicant, constitute sufficient cause within the meaning of Section 5 of The Limitation Act, 1963, the application is belatedly filed. The applicant came to know that the respondent No. 1 had obtained order from the Hon'ble Chief Metropolitan Magistrate for taking forcible possession. This application has...

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