Securitisation Application No. 15 of 2005. Case: Pankaj Shah Vs Cosmos Co-operative Bank Ltd.. Mumbai Debt Recovery Tribunals
| Case Number | Securitisation Application No. 15 of 2005 |
| Counsel | For Appellant: Girish Kedia, Adv. and For Respondents: Rishabh Shah, Adv. for the Respondent No. 1 and Rajesh Nagori, Adv., i/b., Lalit Jain, Adv. |
| Judges | K.J. Paratwar, Presiding Officer |
| Issue | Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(2) and 17; Limitation Act - Section 5; Security Interest (Enforcement) Rules, 2002 - Rules 4(2), 4(5), 4(5A) and 8(1) |
| Citation | IV (2005) BC 217 |
| Judgement Date | May 31, 2005 |
| Court | Mumbai Debt Recovery Tribunals |
Judgment:
K.J. Paratwar, Presiding Officer
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This application (Appeal) (for short 'S.A.') under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for (short 'SRFAESI Act') pertains to the movable properties like Raw Material, Furnance Oil, Dies, etc. as set out in Exh. 'A' to the S.A.
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The respondent No. 2 is respondent No. 1's constituent. The respondent No. 1 had given notice dated 11.8.2003 under Section 13(2) of SRFAESI Act calling upon the respondent No. 2 to pay the outstanding failing which possession of the secured assets namely immovable properties and hypothecated stocks, raw material, etc. was to be taken. Since the amount was not paid by respondent No. 2, the respondent No. 1 took possession on 15.12.2004 by possession notice under Rule 8(1) of even date only of the immovable property. Though the possession notice refers only to immovable property, the movable, raw material, etc. inside the immovable property have also gone in the possession of the respondent No. 1.
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The applicant's case is that movables as referred to Exh. 'A' to the S.A. belong to it. The applicant claims to be carrying business of manufacturing Carbon and Alloy Steel, forging for the export purpose. In order to carry out the manufacturing activities, the applicant used to purchase raw material i.e. carbon steel and alloy from the market and deliver at the respondent No. 2's factory at Murbad on job work basis. Accordingly, the movables herein delivered to respondent No. 2 between 16.8.2004 and 24.11.2004 are covered under Form No. 57(F) [(now Convet Rule 4(5A)]. This was also within the Bank's knowledge, the respondent No. 2 having accordingly informed respondent No. 1. As such, the respondent No. 1 should not have taken possession of the movables in question. But, the respondent No. 1 Bank refused to re-deliver the goods on the request by the applicant bringing to the Bank's notice all the aforesaid and relevant facts. Therefore, this S.A.
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The respondent No. 1 by reply in the nature of affidavit of Mr. D.A. Dehadaray (Exh. 11) has opposed the applicant's claim initially on the ground of limitation. It is then stated that 9 items referred to in Exh. 'A' to the S.A. do not form subject matter of possession taken by the respondent No. 1 as would be clear from the inventory prepared by the Bank under Rule 4(2) of the Security Interest (Enforcement) Rules, 2002. It is stated that copy of...
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