- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.161 OF 2008 WRIT PETITION NO.161 OF 2008 WRIT PETITION NO.161 OF 2008 Kotak Mahindra Bank Ltd. ...Petitioner vs. 1.State of Maharashtra 2.IMP Monetary Services Pvt.Ltd. 3.IMP Capital & Financial Consultancy Pvt.Ltd. 4.Mukesh Shashikant Parekh 5.Mrs.Ila Mukesh Parekh ...Respondents Ms Revati Mohite Dere for the petitioner Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 : SEPTEMBER 26,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The submissions of the learned counsel for the petitioner and the learned A.P.P for State of Maharashtra were heard on the last date. The petitioner in this petition had applied before the learned Chief Metropolitan Magistrate under section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the said Act). The prayer in the said application made by the petitioner was for possession of the secured assets. The said application was allowed by the learned Magistrate by order dated 11th October 2007. The learned Magistrate directed the Assistant Registrar of his Court to take possession of the secured assets/immoveable property set out in the Exhibits A and B to the application made by the petitioner. The learned Magistrate directed that - 2 - the possession will be taken by the Assistant Registrar after issuing notice of taking possession and after giving reasonable time of not more than 15 days to hand over possession. The challenge in this Petition is to that part of the order by which a direction was issued to give notice to the borrower of taking possession. 2. It must stated here that after rule was issued in this Petition, there was a settlement of the dispute between the petitioner and the second to fifth respondents and therefore, the names of the said respondents were deleted. The submission of the learned counsel for the petitioner is that while exercising power under section 14 of the said Act, there was no necessity to direct the Assistant Registrar to issue 15 days’ notice of taking possession of the secured assets. Reliance is placed on the decision of this court in case of M/s.Trade Well and another Vs. Indian Bank decided by a Division Bench of this Court on 2nd April 2007. The learned A.P.P submitted that the petitioner is the assignee of original creditor and therefore, there was a justification for issuing the said direction. 3. I have considered the submissions. The relevant part of the impugned order dated 30th October 2007 reads thus : . "The application is allowed. The Asstt. Registrar - 3 - Mr.P.B.Arbart at Esplanade Centre of Courts after issuing notice of taking possession of the secured assets, immovable property described in Exh.A and B hereto, by possession shall take possession of above mentioned properties along with documents relating thereto. After taking possession of the abovesaid premises, as set out in Exh.A and B and the documents relating thereto from the respondent, Asstt. Registrar shall while taking possession of the mortgaged property i.e. secured assets, prepare inventory of the articles in flat/premises therein, if not removed by the respondents and hand over the articles to the applicant bank alongwith the possession of secured assets..." As far as the nature of the proceedings under section 14 of the said Act is concerned, the law is no longer res integra. The Division Bench in case of M/s.Trade Well (supra) has laid down the law on the subject. What has been held by the Division Bench can be summarised as under : (a) Looking to the scheme of the said Act, notice or hearing to the borrower or to third party is excluded in the proceeding under section 14 of the said Act. (b) At the time of passing the order under section 14 of the said Act, the learned Magistrate has to consider two - 4 - aspects. Firstly, he must find out whether the secured assets fall within his territorial jurisdiction and whether notice under section 13 (2) is given or not. (c) No adjudication of any other kind is contemplated at this stage. 4. Thus, the law laid down by the Division Bench is very clear. Before passing the order under section 14 of the said Act, the learned Magistrate is not required to give notice or hearing either to the borrower or to the affected third party. Therefore, there was no occasion for the learned Magistrate to issue a direction to the Assistant Registrar to issue 15 days’ notice before taking over the possession. If the law does not contemplate notice before passing the order under section 14, the said direction of issuing notice after passing the order could not have been issued. 5. In the present case, now there is already a settlement between the petitioner and the second to fifth Respondents. Therefore, now an occasion for implementing the order passed by the learned Magistrate will not arise. Though the direction issued by the learned Magistrate to the aforesaid extent is erroneous, in the facts of the case it is not necessary to modify the order. - 5 - 6. Petition is accordingly disposed of. JUDGE JUDGE JUDGE