(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) Civil Application No.5053 of 2012 is filed by one M/s. Crazy Kids Amusement Park Pvt. Ltd. and Civil Application No.5054 of 2012 is filed by M/s. Chogme Hotels Pvt.Ltd. By way of these civil applications, it is prayed that respondent No.2-Bank may be permitted to accept the outstanding amount in the loan account of the applicants. Each of the applicants had taken loan from the said bank and in turn, had mortgaged their respective properties with the Bank. The concerned Bank initiated the proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act of 2002 (for short, 'Securitization Act') as the concerned applicants made default in making payment. The aforesaid bank approached the District Magistrate under Section 14 of the Securitization Act for taking possession. Initially, learned Magistrate passed an order regarding possession, however, subsequently, respondent in one of the applications, M/s.M.Square Caterers & Hospitality Pvt. Ltd. approached the learned Magistrate and submitted that since they are in possession, no order under Section 14 should have been passed and if any order is passed, it may result into dispossession of the aforesaid company without giving any opportunity of hearing. Learned Magistrate accepted the said contention of respondent and stayed his own order with a view to decide the controversy on the subsequent date. The aforesaid order of the Magistrate was challenged by the creditor-Bank by way of Special Civil Application No.8480 of 2009. The said objector - respondent No.1 was not joined as party to the said writ petition and only principal debtor was joined, even though a caveat was filed by the respondent No.1. Initially, the learned Single Judge while admitting the matter granted ex-parte ad-interim order by which the order of the Magistrate was stayed and permitted the Bank to take possession.
The respondent No.1 herein challenged the said order before the Division Bench by way of Letters Patent Appeal. The said appeal was allowed and the matter was remanded back to the learned Single Judge and subsequently, in the writ petition, which was pending before the learned Single Judge, respondent No.1 herein was joined as party along with original debtor. The learned Single Judge subsequently, allowed the writ petition by setting aside the order of the Magistrate. The respondent No.1 herein challenged the said order by way of Letters Patent Appeal No.2280 of 2009. The respondent No.1 also filed substantive Special Civil Application challenging the virus of Section 14 of Securitization Act. In the said writ petition, a point is taken also to the effect that Co.Op.Society is not covered under the Secularization Act and that the Government Notification by which, Co.Op.Society is included under the Secularization Act is bad in law. The Letters Patent Appeal and Special Civil Application both are admitted by this Court. In the Letters Patent Appeal, the Division Bench of this Court while admitting the appeal passed an order in view of the statement made by respondent No.1 that he is ready to deposit the amount of the debt due to the Bank. The Division Bench permitted the respondent No.1 to deposit the said amount which amount has been kept in a separate account of the Bank. It is not in dispute that if the said amount is taken into consideration, the entire debt of the Bank can be said to have been satisfied and it is pointed out that in-fact, there is an excess amount paid by respondent No.1 that is to the tune of Rs.2 Lacs and odd amount. However, Division Bench made it clear that the deposit of the aforesaid amount by the applicant and acceptance thereof by respondent No.1-Bank shall not create any right, title, interest or equity in favour of the applicant. The said Letters Paten Appeal is pending for final hearing.
By these respective two Civil Applications, the applicants have prayed that they are willing to pay the entire dues of the respondent No.2-Co.Op. Socities. It is the say of the applicant that even though, applicant had gone with the amount by way of draft but the Bank is not accepting it on the ground that proceedings are pending before the Court. By these Civil Applications, it is prayed that the Bank be directed to accept the said amount and return the documents of title to the respective applicants.
Learned senior counsel, Mr.Vyas, appearing for respondent No.1 submits that respondent No.1 has paid Rs.60 Lacs in view of the High Court's order and he has also filed substantive suit against the applicants herein and prayed for various reliefs, wherein interim injunction is granted protecting the possession of the respondent No.1.
Learned counsel, Mr.Sanjanwala, on the other hand, states that the applicant of the civil application has also filed counter suit which is also pending before the civil Court. It seems that some interim orders are passed which is the subject matter of Appeal from Order of this Court.
It is argued by Mr.Vyas that since the amount is deposited by the respondent No.1, in pursuance of the order of the Division Bench, and if the Bank is directed to settle the matter, the Bank must repay the said amount with proportionate interest. It is submitted that even prior to deposit of the said amount i.e. Rs.60 Lacs, as per the Division Bench order, earlier he has paid about Rs.32 lacs on behalf of original debtor.
So far as the payment of aforesaid amount is concerned, the same is in dispute. In our view, so far as the said aspect is concerned, it is not necessary to examine the same in detail. It will be open to the respondent No.1 to take out appropriate proceedings qua the same and we express no opinion in this behalf. It is also not in dispute that by virtue of the payment made by respondent No.1, as on today, the entire amount is received by the Bank. In view of the order of the Division Bench in the Letters Patent Appeal, it is pointed out to the Court, that simply because the aforesaid payment is made by the respondent No.1, no right, title, interest or equity is created in favour of the said respondent No.1. But by virtue of the said payment, he has retained the possession otherwise Bank could not proceed under Section 14 of Securitization Act.
Learned senior counsel, Mr.Vyas, however, submitted that respondent No.1 cannot object if Bank wants to accept direct payment from the concerned applicant but the rights of the respondent No.1 are required to be protected. Since the original respondent No.2-Bank is willing to accept the amount directly from the original debtors i.e. M/s.Chogme Hotels Pvt. Ltd. and M/s.Crazy Kids Amusement Park Pvt.Ltd., the Bank may be permitted to accept the said amount on condition that on receiving the said amount, the Bank shall immediately pay an amount of Rs.60 Lacs to respondent No.1, which respondent No.1 has deposited in the Bank, by virtue of the order passed by the Division Bench.
Learned counsel, Mr.Sanjanwala, after taking instructions from his clients, states that if Bank is not willing to pay interest to respondent No.1, the amount of interest which comes to Rs.17.50 Lacs will be paid by them to respondent no.1 and accordingly the dues of the Bank will be settled. Learned counsel Mr.Sanjanwala also submits that within a period of 3 weeks the said amount will be paid. He states that he is making this statement after taking instructions from his client and he states that his oral statement may be accepted. The said statement is accepted.
Learned advocate Mr.Joshi for respondent No.2-Bank states that so far as an amount of Rs.32 Lacs which is deposited by respondent no.1 is concerned, respondent No.1 cannot claim the said amount from the Bank and he can take out any other remedy against any of the respondents as deemed fit. In our view, so far as the aforesaid aspect is concerned, it is open for the respondent No.1 to take appropriate legal proceedings in accordance with law, as deemed fit and we express no opinion on this point.
In view of the same, this civil applications are disposed of by giving following directions.
The respondent No.2-Bank is permitted to settle it's claim against the applicants, namely, M/s. Crazy Kids Amusement Park Pvt. Ltd. and another by M/s. Chogme Hotels Pvt.Ltd. On receiving the amount from the concerned applicants, Bank shall handover all necessary documents of title in favour of each of the applicants without delay.
Bank will also issue No Due Certificate in favour of the said applicants.
The Bank will have no claim whatsoever against applicants on receiving said amount.
After receiving the amount from the concerned applicants, Bank will immediately return Rs.60 Lacs in favour of the respondent No.1 before handing over the documents of title in favour of the concerned applicants.
This arrangement shall not affect the rights of applicants as well as respondent No.1 in their respective civil suits and this arrangement between the Bank and concerned applicants will be without prejudice to rights and contentions raised by the respective parties in the respective civil suits filed by respondent No.1 and concerned applicants. If the respondent No.1 has any claim, as stated above, about Rs.32 Lacs or odd amount, it will be open to it to take appropriate proceedings in accordance with law.
At the time of making payment to the Bank, concerned applicants, in all, shall pay Rs.17.50 lacs towards interest claimed by respondent No.1 as the aforesaid amount was placed in separate account and the amount was blocked and was retained by the Bank. The said applicants agreed to pay the amount to respondent No.1. On receiving such amount, respondent No.1 will have no claim of interest in connection with the aforesaid amount of Rs.60 Lacs.
It is clarified that the Court has not considered any other rival claims between the parties and not even examined the dispute of title, if any, or of possession and this order will have no bearing qua any of the orders operating in the matter by virtue of order passed by Civil Court in any other proceedings.
It is clarified that this order is passed with consensus prevailing between the advocates who are appearing in these matters for the respective parties.
Accordingly, both these civil applications stand disposed of.
Since the Letters Patent Appeal arises out of an order under Section 14 of the Secularization Act, in view of the order made in Civil Applications, Letters Patent Appeal also stands disposed of. It is also clarified that now on receiving the amount, the Bank shall not proceed under the Secularization Act as it is agreed that the Bank dues stands satisfied.
Learned senior counsel Mr.D.D.Vyas, states that, in view of the aforesaid order, he is not pressing special civil application. The same also stands disposed of as not pressed. Rule is discharged.
(P.B.MAJMUDAR, J.) (PARESH UPADHYAY, J.) (ashish) Top