spb/- 1 6-8-1983-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1983 OF 2010 Mr. Anand Rao Pawar & Anr. ... Petitioners. Vs. Jammu & Kashmir Bank Ltd., & Ors.. .. Respondents. --- Mr. Ashish Mehta i/by Shrikant Padhi for the Petitioners. Mr. Pankaj Das i/by Goenka Law Associatets for Respondent No.1. Mr. Mandor Suman for Respondent Nos. 2 to 5. Mr. S.A.Shaikh, APP for the State. ...... CORAM : V. M. KANADE, J. DATE : 06TH AUGUST, 2010. P.C. 1 Heard the learned counsel appearing on behalf of the Petitioners and the learned counsel appearing on behalf of the Respondents. 2 The petitioners are aggrieved by the order passed by the learned Chief Metropolitan Magistrate dated 17th March, 2008 in C.C. No. 210/M/2007 and further order passed in Notice No. spb/- 2 6-8-1983-10.sxw 58/N/2008 in the same case dated 21st June, 2010. By the said order, the learned Magistrate has permitted the respondent bank to take physical possession of the suit flat in which the petitioners are residing. A loan was taken by the respondent nos. 2 to 5 from the respondent no.1-bank and the present applicants/petitioners remained guarantors. The respondent nos. 2 to 5 had applied for cash credit facility to the bank and the same was granted. An amount of Rs. 43 lacs was due and payable by the principal debtor and the applicants. According to the applicants, the petitioners herein, they have so far deposited Rs. 31 lacs and they are disputing the interest which is charged by the bank. It is submitted that at the highest the bank may be directed to take symbolic possession of the premises and not physical possession. It is submitted that no third party rights are created by the applicants/petitioners in respect of the said flats and an undertaking to that effect will be filed by the applicants/petitioners in this court within one week from today. The learned counsel for the applicants/petitioners invited my attention to the Judgment of the Apex Court in the case of Transcore vs. Union of India & Anr., spb/- 3 6-8-1983-10.sxw reported in (2008) 1 Supreme Court Cases 125 and more particularly, paragraph 74 of the said Judgment. He submitted that in the said para, the Apex Court had observed that only in cases where third party interest was likely to be created overnight, an order directing to take actual possession of the property may be passed even prior to the decree. He submitted that in the present case, out of total amount of Rs. 43 lacs, an amount of Rs. 29 lacs is already deposited and therefore, in the circumstances, the order passed by the learned Magistrate may be modified. 3 On the other hand, the learned counsel appearing on behalf of the respondent no.1 submits that an undertaking has been given by the applicants/petitioners before the Assistant Registrar in which they have agreed to pay balance amount in year 2008 itself. It is further submitted that the applicants/petitioners were trying to protract and cause delay in repaying the amount which is due and payable as per their accounts. It is submitted that,therefore, no interference was called for. It is submitted that this court may not interfere with the impugned order passed by the learned Magistrate. spb/- 4 6-8-1983-10.sxw 4 After having heard both the learned counsel at length, in my view, since almost more than 50% amount has been already paid by the principal debtor and by the applicant. The debt of the respondent no.1 bank will be secured if the respondent no.1 bank is permitted to take symbolic possession of the suit flat. The applicants/petitioners have an alternative remedy of filing appropriate proceedings under section 17 of the said Act. They shall, therefore, approach the DRT within four weeks from today. 5 The Apex Court in the case of Transcore, cited supra, has observed that only if the applicant is likely to create third party rights overnight, an order directing the Bank to take physical possession may be passed by the Magistrate. The Apex Court in para 74 of its judgment has observed as under : “......... Till the time of issuance of sale certificate, the authorised officer is like a court Receiver under Order 40 Rule 1 CPC. The Court Receiver can take symbolic possession and in appropriate cases where the Court Receiver finds that a third -party interest is likely to be created overnight, he can take actual possession even prior to the decree. The authorised officer under Rule 8 has greater powers than even a Court Receiver as security interest in the property is already created in favour of the banks/FIs. That interest needs to be protected. Therefore, spb/- 5 6-8-1983-10.sxw Rule 8 provides that till issuance of the sale certificate under Rule 9, the authorised officer shall take such steps as he deems fit to preserve the secured asset. It is well settled that third party interests are created overnight and in very many cases those third parties take up the defence of being a bonafide purchaser for value without notice. It is these types of disputes which are sought to be avoided by Rule 8 read with Rule 9 of the 2002 Rules. In the circumstances, the drawing of dichotomy between symbolic and actual possession does not find place in the scheme of the NPA Act read with the 2002 Rules.”. 6 In view of the observations made by the Apex Court in the said case, in my view, it is not necessary to take actual physical possession of the suit property. The order passed by the learned Magistrate is modified. The respondent no.1 may take symbolic possession of the suit flat and prepare inventory of the articles found in the said flat. The applicants/petitioners may approach the DRT within four weeks from today and seek further order. The order dated 21.06.2010 passed by the Chief Metropolitan Magistrate in Application No. 58/N/2008 is modified accordingly. 7 The Petition is disposed of in the above terms. [V.M. KANADE, J.]