1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3705 OF 2009 IN SUIT NO. 186 OF 2005 Housing Development Finance Corporation Ltd. ....Plaintiff Versus Mr. S. Ayyapan & Ors. ....Defendants Mr. Ashish Kamath a/w. Mr. Rajani i/b. M/s. V. Deshpande & Co., Advocate for the Plaintiff. Mr. G. G. Ketkar, Ist Asstt. to Court Receiver. CORAM : R. V. MORE, J. DATE : 27th JANUARY, 2010. P.C. : Heard learned Counsel for the Plaintiff. None appears on behalf of the Defendants though they are served and affidavit of service to that effect is also filed. 2. At the outset, the learned Counsel for the Plaintiff submits that he is pressing reliefs claimed under prayer clauses (b) and (c) only which are as follows: "b) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to hand over actual and physical possession of the Suit Flat to the Authorised Officer of the Plaintiff under subsection 4 of section 13 of 2 the SARFAESI Act within four weeks from the date of the order. c) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to continue in actual and physical possession of the Suit Flat/Secured Asset till such time the Authorised Officer of the Plaintiffs takes actual physical possession thereof under the SARFAESI Act and that upon handing over possession of the Suit Flat to the Authorised Officer of the Plaintiff, the Court Receiver, High Court, Bombay to simultaneously stand discharged without passing accounts." 3. The Plaintiff filed the above suit for recovery of loan and enforcement of security against the Defendant No.1 and Defendant Nos.2 & 3 who are the borrowers and guarantors respectively. The Plaintiff took out notice of motion no. 2026 of 2005 for appointment of the Court Receiver. This Court by an Order dated 19th July, 2005 appointed the Court Receiver, High Court, Bombay as Receiver of the flat more appropriately described in exhibit "D" annexed to the plaint. The said flat was mortgaged by deposit of title deeds. The Court also directed the Receiver to take physical possession of the flat. On 26th August, 2005 when the Court Receiver visited the said flat, the Defendants did not remain present at the site on the said date inspite of notice and therefore, in the presence of the Plaintiff, physical possession of the said flat was taken by the Court Receiver. 3 4. It is the contention of the Plaintiff that they can independently proceed against the Defendant under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after for the sake of brevity referred to as "SARFAESI Act"). It is further contended that infact they have issued notice under section 13(2) of the said Act on 7th April, 2009, which notice is annexed at page 25 of the notice of motion. This notice was published in "The Free Press Journal" and "Navshakti" both on 7th May, 2009. 5. In the above facts and circumstances, the present notice of motion to direct the Court Receiver to hand over physical possession of the suit flat to Authorised Officer of the Plaintiff under subsection 4 of section 13 of the SARFAESI Act is taken out. 6. Inspite of service none of the Defendants appeared in the proceedings of the suit from inception either by putting appearance or filing written statement. They have not even appeared at the time of hearing of the notice of motion no. 2026 of 2005 and therefore, the Court Receiver was appointed ex-parte. By way of abundant caution, I directed the Plaintiff to serve the Defendants again and they have been served again by way of substituted service, however, none of them appears today. 7. The Ist Assistant to Court Receiver is present before this Court and has no objection to grant of prayer clauses (b) and (c) of the notice of motion. 4 8. The Apex Court in Allahabad Bank Versus Canara Bank, AIR 2000 SC 1535 held that the provision of Recovery of Debts due to Banks and Financial Institutions Act would override the powers of the Company Court under the Companies' Act, 1956. The Single Judge of this Court also in Akola Oil Industries & Ors Versus State Bank of India & Anr. 2005 (5) Bom. C.R.706 held that the secured creditor, while proceeding under the R.D.B.Act or Securitisation Act does not need permission of the Company Court. Besides this, section 35 of the Securitisation Act gives overriding effect to the provisions of the Act notwithstanding anything inconsistent therewith contained in any other law for the time being in force. 9. In the light of the above discussion, I am of the view that the Plaintiff is entitled for reliefs claimed under prayer clauses (b) and (c) of the notice of motion. The notice of motion is accordingly made absolute in terms of prayer clauses (b) and (c), subject to payment of usual cost and charges of the Court Receiver. 10. The Court Receiver to fix the date with the Plaintiff for handing over possession of the suit flat to Authorised Officer of the Plaintiff. Sd/- (R. V. MORE, J.)