Heard Mr. Desai, learned advocate for the petitioners.
2. At the outset, it is necessary to mention that Mr. Desai, learned advocate for the petitioners, requested for circulation of present matter at 11.00 a.m. today. It was mentioned by Mr. Desai that permission for urgent circulation for today was sought for by him before the Hon'ble the Acting Chief Justice and the Hon'ble the Acting Chief Justice has permitted circulation of this petition for today, subject to convenience of this Court. On such premise, request for circulation of present petition for hearing was made by Mr. Desai in the First Session.
Considering the permission granted by the Hon'ble the Acting Chief Justice, this Court permitted circulation of the petition today.
3. Accordingly, at 2.30 p.m. the papers of present petition are placed before this Court. Mr. Desai, learned advocate appearing for the petitioners, has submitted that the impugned notice dated 9.3.2012 was served on the petitioners only on 15.3.2012, i.e. yesterday.
3.1 He further submitted that as per the said notice, the respondent Bank is to take physical possession of the property in question tomorrow (i.e. on 17.3.2012) and since it would be non-working day for the Court, request for hearing for today had to be made.
3.2 He further submitted that the property of which the respondent Bank wants to take physical and actual possession on 17.3.2012 is residential premises of the petitioners.
3.3 Mr.
Desai also submitted that the petitioners have, as of 29.2.2012, deposited a sum of Rs.27,60,000/- and the petitioners are also ready to deposit further sum of about Rs.7,00,000/- within a week from today. He also submitted that if the respondent Bank is not restrained from taking the proposed action on 17.3.2012, then, the petitioners will be ousted from their residential premises although the petitioners have been making payment of the outstanding dues. He also made reference of the details of the payments made by the petitioners since June-2011, which are mentioned in para 2.23 (page12 and 13 of the petition).
4. It is noticed from the record that the respondent Bank had served a notice dated 4.2.2012 to the petitioners. The details mentioned at para 2.23 show that after the said notice dated 4.2.2012 (page 34), the petitioner has paid further sum of Rs.60,000/- on 29.2.2012.
5. Ordinarily, this Court would not entertain such petition against the notice for taking possession issued by the Financial Institution / Bank in exercise of powers conferred under the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and would relegate the petitioner to the appeal/alternative remedy.
However, the main ground on which the request came to be made for circulation of the petition and hearing is that the learned Member of the Tribunal at Ahmedabad is not available until 27.3.2012 and the urgent matters are required to be mentioned before the learned tribunal at Mumbai and that therefore, the petitioners are left with no alternative, but to approach this Court in view of the fact that the notice came to be served only yesterday, i.e. 15.3.2012 and that therefore, it would not be possible to approach the learned Tribunal at Mumbai before tomorrow.
5.1 Thus, it is only in view of the submission that learned Member of the Tribunal is not present, the petition is entertained.
6. Having regard to the fact that the learned tribunal, who is competent to hear and decide the appeal against the proposed action, is not available and the property against which the respondent Bank intends to take action is a residential premises and also considering the fact that the petitioners are in process of making payment of outstanding dues and also considering the fact that symbolic possession is already taken by the respondent Bank and with the view that the proposed appeal may not be rendered infructuous, the petition is entertained and office is directed to issue notice to the respondent Bank making it returnable on 21.3.2012 on condition that the petitioners shall deposit a further sum of Rs.1,00,000/- with the Bank on or before 20.3.2012.
6.1 Until the returnable date of the notice, the respondent Bank shall not take any coercive action in pursuance of the notice dated 9.3.2012.
Direct service is permitted today.
(K.M.Thaker, J.) kdc Top