1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2510 OF 2009 WITH CHAMBER SUMMONS NO.382 OF 2009 Hotel Sai Siddhi Pvt.Ltd. ...Petitioner Versus The Union of India & Ors. ...Respondents ...... Mr.Mathew Nedumpara i/b Ms.Indira Reddy for Petitioner. Mr.K.R.Chaudhari with Mr.M.S.Bharadwaj for Respondent No.1. Mr.L.K.Jain i/b L.Jain & Co. for Respondent No.4. Mr.Ashish Kamat with Mr.Nikhil Rajani i/b M/s.V.Deshpande & Co. for Tourism Finance Corporation Ltd. Mr.U.S.Shetty i/b V.Shetty & Co. for Applicant in Chamber Summons No.382/2009. Mr.T.P.Gireesh Kumar, Corporate General Manager is present. ...... CORAM : A.M.KHANWILKAR AND A.P.DESHPANDE, JJ. DATED : DECEMBER 19, 2009. P.C. : 1. This Petition was listed on 14th December 2009 as well as on 15th December 2009 before the Bench to which one of us was party 2 (Justice A.M.Khanwilkar). At the outset, Counsel appearing for the Petitioner submitted that the Petitioner were willing to pay the entire dues of the Respondent Bank as well as other Banks. The grievance of the Petitioner is that, inspite of conditional order dated 6th May 2009 passed by the Debts Recovery Tribunal-III, Mumbai in O.A.No.105 of 2007, which was to operate for a period of three months from the date of the order, the Bank hastened to take over possession of the mortgaged property on 23rd June 2009. According to the Counsel for the State Bank of India, joint possession was taken by the State Bank of India along with the Corporation Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002. Suffice it to observe that since the Petitioner expressed willingness to pay the entire dues of the two Banks, we indicated to the Counsel for the Petitioner that indulgence can be shown to the Petitioner, provided the Petitioner forthwith deposited minimum Rs.5 crores to show bonafides. The Petitioner, in deference to the observation made by the Court, took time to comply with the said condition. However, on 15th December 2009, when the matter appeared on Board, once again, we found that the Petitioner was only offering 3 some excuses and counter suggestions. The Petitioner took time to place its stand on affidavit of undertaking, for which, the matter was kept back. However, when the matter was called out for the second time as kept back matter, none appeared for the Petitioner, for which reason, this Court had no option but to dismiss the Petition for default. 2. After the said order was passed, Counsel appearing for the Petitioner moved the Court for restoration of the Petition. He was given liberty to inform the Counsel appearing for the Respondents and mention the matter afresh after due notice. The matter was accordingly placed on 16th December 2009. It was notified under caption directions. However, the matter stood over to 17th December 2009. When the matter appeared before this Bench, once again, in view of the counter suggestion given by the Counsel for the Petitioner, the matter stood over to today i.e. 19th December 2009. 3. In the light of observations made during the hearing, Counsel for Respondent No.4 has prepared minutes of order and submits that the said Respondents as well as Corporation Bank who is now 4 represented by Mr.Shetty, will have no objection if the Petition is restored to the file and disposed of on the terms of the said minutes of order. The minutes of order now presented before us read thus: “1) The Petitioner admits and accepts Judgement dated 6th may 2009 in O.A. No. 105 of 2007 by the Hon’ble Presiding Officer Debts Recovery Tribunal III, Mumbai. 2) The Petitioner agrees and undertakes to pay on or before 18th January 2010 a sum of Rs. 20,72,96,281.45 which is due and payable to State Bank of India Respondent NO. 4 herein who is having first pari-pasu charge over the properties of Petitioner at Goa and Nashik, more particularly described and declared mortgaged in the said Judgement dated 6th May 2009 and Corporation Bank is also having Pari-pasu charge along with State Bank of India. 3) The Petitioner agrees and undertakes to pay on or before 18th January 2010 a sum of Rs. 16,41,51,141 which is due and payable to Corporation Bank. 4) The State Bank of India the Respondent No.4 herein is ready to accept Rs.20,72,96,281.45 without prejudice to their rights and contentions in Appeal No.244 of 2009 filed at DRAT, Mumbai, challenging the said Judgement dated 6th may 2009 only to the extent of awarding simple interest instead of interest at monthly rest as prayed in the O.A. No.105 of 2007. 5) The State Bank of India and Corporation Bank after the receipts of the entire amount as stated in clause 2 and 3 herein above and subject to outcome of said Appeal no.244 of 2009 filed at DRAT by State Bank of India, will hand over the original Title Deeds of the mortgaged properties to Tourism Finance Corporation of India Limited who are having second charge over the properties at Goa and at Nashik as declared by the said Judgment dated 5th may 2009 in O.A. No.105 of 2007. 6) In the event of the Petitioner failing to make the payment as per the undertaking and within the time as prescribed at Clauses (2) and (3) hereto, the Respondent No.4 Bank will be at liberty to take steps to enforce securities mortgaged in accordance with law. 5 7) The undertakings given by the petitioner are accepted. 8) Petition be disposed off in terms of Minutes of Order.” 4. Counsel for the Petitioner on instructions of Mr.Girish Kumar, Corporate General Manager, submits that the Petitioner is willing to abide by the above terms, provided the claim of the Petitioner with regard to the interest rate and also for compensation for unilateral action taken by the State Bank of India inspite of order dated 6th May 2009 be left open. Besides, he submits that on payment of entire amount claimed by the two Banks, possession of the property be made over to the Petitioner. 5. Counsel appearing for the Tourism Finance Corporation of India Ltd. (who has not been impleaded as Respondent in this case), submits that the said Corporation is having second charge over the mortgaged property. Therefore, even if the Petitioner were to pay the entire dues of State Bank of India and Corporation Bank, the Tourism Finance Corporation of India Ltd. would still be entitled to retain the title deeds in respect of the property in question being second charge holder. The Petitioner through Counsel submits that 6 Petitioner is willing to pay even the outstanding dues of the Tourism Finance Corporation of India Ltd. It is open to the Petitioner to directly negotiate and resolve matter/claim with the Tourism Finance Corporation of India Ltd. 6. Suffice it to observe that the Petitioner has shown willingness to abide by the Minutes of Order which are reproduced in the earlier part of this order subject to preserving its right to contest the interest claim of the Bank as well as ask for compensation/damages, if any. 7. In the circumstances, we proceed to restore the Writ Petition to its original number and pass the following order, by consent: 1) The Petitioner admits and accepts Judgment dated 6th May 2009 in O.A. No. 105 of 2007 passed by the Hon’ble Presiding Officer, Debts Recovery Tribunal III, Mumbai. 2) The Petitioner agrees and undertakes to pay on or before 18th January 2010 a sum of Rs. 20,72,96,281.45 (Rupees Twenty Crores Seventy-two Lakhs Ninety-six 7 Thousand Two Hundred Eighty-one & Paise Forty-five Only) which is due and payable to State Bank of India - Respondent No. 4 herein who is having first pari-pasu charge over the properties of Petitioner at Goa and Nashik, more particularly described and declared mortgaged in the said Judgment dated 6th May 2009 and Corporation Bank is also having Pari-pasu charge along with State Bank of India. 3) The Petitioner agrees and undertakes to pay on or before 18th January 2010 a sum of Rs.16,41,51,141/- (Rupees Sixteen Crores Forty-one Lakhs Fifty-one Thousand One Hundred Forty-one Only) which is due and payable to Corporation Bank. 4) The State Bank of India the Respondent No.4 herein is ready to accept Rs.20,72,96,281.45 (Rupees Twenty Crores Seventy-two Lakhs Ninety-six Thousand Two Hundred Eighty-one & Paise Forty-five Only) without prejudice to their rights and contentions in Appeal No.244 of 2009 filed at DRAT, Mumbai, challenging the said Judgment dated 8 6th May 2009 only to the extent of awarding simple interest instead of interest at monthly rest as prayed in the O.A. No. 105 of 2007. 5) The payment to be made by the Petitioner will be without prejudice to all the rights and contentions of the Petitioner, in particular, in the pending proceedings before the DRAT and/or such other proceedings as may be filed by the Petitioner including for damages/compensation. 6) The State Bank of India and Corporation Bank after the receipt of the entire amount as stated in clauses (2) and (3) herein above, within 15 days from the date of the decision in Appeal No.244 of 2009 filed at DRAT by State Bank of India, will hand over the original Title Deeds of the mortgaged properties to Tourism Finance Corporation of India Limited who are having second charge over the properties at Goa and at Nashik as declared by the said Judgment dated 5th May 2009 in O.A. No.105 of 2007. 9 7) The State Bank of India and Corporation Bank agree to hand over possession of the mortgaged property to the Petitioner within one week from the date of receipt of full payment in terms of this order, which, however, will be without prejudice to the rights and contentions of the parties and also of Tourism Finance Corporation of India Ltd. 8) In the event of the Petitioner failing to make the payment as per the undertaking and within the time as prescribed at Clauses (2) and (3) hereto, the Respondent No.4 Bank will be at liberty to take steps to enforce securities mortgaged in accordance with law. 9) The undertakings given by the Petitioner are accepted. 10) Petition is disposed of in terms of this order. No order as to costs. A.P.DESHPANDE, J. A.M.KHANWILKAR, J.