Heard Mr. Puj, learned counsel for the petitioner, Mr. Dave learned counsel for respondent no. 1, Mr. Pranav Dave, learned AGP for respondent no. 2, Party-in-person - respondent no. 3 herein, Mr. Bhatt, learned counsel for respondent no. 4 and learned counsel on behalf of respondent no. 5.
When the matter was taken up for hearing, preliminary objection was raised by Mr. Bhatt regarding the maintainability of the present petition. He submitted that the alternative efficacious remedy for filing statutory appeal has been provided under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFAESI Act' for short] and therefore, the present petition does not deserve to be entertained. He contended that respondent no. 4 herein is the legal owner of the property in question and that no relief as claimed may be granted in favour of the petitioner. In respect of his submission regarding maintainability of the writ petition, Mr. Bhatt has placed reliance upon the decision of the Hon'ble Apex Court in the case of United Bank of India v. Satyawati Tondon & Ors. AIR 2010 SC 3413 and the decision of this Court in the case of General Tyre Agency & Anr. v. Liquidator, Charotar Nagrik Sahakari Bank Ltd. 2011 (2) GLR 1820.
On the other hand, it has been submitted on behalf of the petitioner that the petitioner had purchased the property in question bearing Municipal Census No. 1/5/25/2, Tika No. 11/2, City Survey No. 213 i.e. Shop No. 3 in Aradhana Complex, near Chaturbhuj Garden, Patan by registered Sale Deed executed in the year 2000.
It appears from the record that in respect of the said property, an entry was effected in the property card registered on 12.08.2008 showing the name of respondent no. 4 herein who is the owner of the property in question. However, the documents on record show that the petitioner is in physical possession of the property in question which is also evident from the proceedings of the suit being Regular Civil Suit No. 3 of 2008 filed by respondent no. 5 herein and pending before the competent Court at Patan and also Regular Civil Suit No. 127 of 2008filed by respondent no. 4 through his Power of Attorney Holder. Both the said suits are pending. Considering the fact that the order of status quo has been passed in respect of the property in question and which is still in operation, in my view the proceedings under the SARFAESI Act could not be proceeded until the final outcome in the said proceedings otherwise it would amount to vacating the order granted by the competent Court. It appears that the loan is taken subsequently to get the premises vacated under the SARFAESI Act.
In view of the above RULE returnable on 29.10.2012. Pursuant to the earlier order of this Court dated 12.06.2012, it is stated that the petitioner has deposited the amount in question with the Registry of this Court. The Registry, in turn, shall pay the entire amount to respondent no. 1 Bank by 'A/c Payee' cheque and on realization of the same, respondent no. 1 - Bank shall restore the physical possession of the property in question to the petitioner forthwith. Thus, the amount referred in the notice is satisfied.
Since the payment is now made, practically, the proceedings under the SARFAESI Act shall not survive. However, in order to ascertain the liability and validity of the proceedings initiated by respondent no. 1 Bank under the SARFAESI Act the petitioner shall be at liberty to raise all the contentions at the time of final hearing of the petition. It is however, observed that, in the meantime, if respondent no. 4 approaches the trial Court concerned for deciding the contempt proceedings, the trial Court concerned shall decide the proceedings without being influenced by the observations made in the aforesaid order. It is however, made clear that the possession of the property in question is believed and not the title. Even if he is the trespasser, he cannot be thrown out under the legal proceedings. It is further clarified that these proceedings are independent of contract which was executed by different parties for the same property.
Direct Service is permitted.
[K.S.
JHAVERI, J.] /phalguni/ Top