-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3216 OF 2009 IN SUIT NO. 1764 OF 2004 Housing Development Finance Corp. Ltd. ..Plaintiff. Versus Sunanda Suresh Pujari. ..Defendant. Ms. Prajkta Mhatre i/b Thakore Jariwala & Associates for the plaintiff. Coram : R. V. MORE, J. Date : March 11, 2010. P. C. : 1. Heard learned counsel for the plaintiff. None appears for the defendant despite due service. The notice of motion is taken out by the plaintiff for permission to take recourse to one or more measures in exercise of their powers under the provisions of Securitisation & Reconstruction of Financial Assets and enforcement of security Interest Act, 2002 (SARFAESI Act) for the purpose of enforcement of security interest by the defendant in favour of the plaintiff with respect to the suit flat being Flat No. 210, admeasuring 1000 sq. feet situated on 2nd floor, Nathasha Park, Phase-II, Penkar Pada, Off. Western Express Highway, Mira Road (East). 2. The plaintiff has instituted the above suit for the recovery of an amount of Rs.14,84,435/- being the amount due, outstanding and payable by the defendant to the plaintiff under the housing loan account together with further interest thereon @13.44% p.a. from the date of the suit till payment/realisation thereof. This Court by an order dated 18th August -: 2 :- 2004 passed in Notice of Motion No. 1827 of 2004 appointed the Court Receiver, High Court, Bombay as a Receiver on the suit flat. However, the Court Receiver could not take possession since the property was already under attachment of Mira Bhaindar Municipal Corporation. The plaintiff has taken out the present notice of motion seeking leave of the Court to take recourse of its power under the SARFAESI Act. Permission was necessitated in view of the fact that property is custodia leges. 3. The Apex Court in the matter of Transcore v/s. Union of India & Anr, reported in (2008) 1 SCC 125 has held that the the SARFAESI Act being an additional remedy available to the secured creditors, the banks and financial institutions are entitled to invoke the provisions of the said Act by taking recourse to one more measures as enumerated in section 13 of the said Act for the purpose of enforcement of secured interest created by the borrower in favour of the secured creditor even if the matter is pending before the DRT with a view that the recovery is made in a speedy manner. 4. In view of the above judgment of the Apex Court, I find no reason why the plaintiff’s prayer for permitting him to take recourse to its rights under the SARFAESI Act should not be granted. Moreover the defendant has not appeared in the matter despite service, and therefore, the averments made in affidavit in support of the notice of motion are deemed to have been accepted by them. 5. Notice of motion is accordingly disposed of by passing following order : -: O R D E R :- -: 3 :- (1) The plaintiff is granted liberty to take recourse to such action as may be open in accordance with provisions of the SARFAESI Act for enforcement of the security interest created by the defendant in their favour with respect of the suit flat. (2) The Court Receiver, High Court, Bombay stands discharged without passing accounts, however, subject to the cost, charges and expenses of the Court Receiver. (3) It is clarified that in the event that any such proceedings are adopted by the plaintiff, the defendant would be at liberty to take recourse to such remedies as are available to her in accordance with law and this order shall not be construed as amounting to any adjudication of any questions which may arise in those proceedings. (4) The notice of motion is accordingly allowed in the aforesaid terms. (R.V. MORE, J.)