1 wp-280-2010 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.280 OF 2010 Dharmendra Shambhubhai Vaghasiha and anr. ...Petitioners Versus Union of India and ors. ...Respondents Mr.P.C.Kansara i/b. Kansara & Thanekar for petitioners. Mr.S.K.Shinde for resp.no.1. Mr.Kedar Dighe for resp.no.3. Mrs.P.P.Shinde, APP for State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. July 1, 2011. P.C. 1. Heard Mr.Kansara, the learned counsel for the petitioners. In this petition filed under Article 226 of the Constitution the substantial relief 2 wp-280-2010 prayed for is in terms of prayer clauses (b) and (c) which read as under: “b) This Honourable Court be pleased to issue writ, order or direction to the respondent no.2 to forthwith hand over the peaceful possession of the said flat bearing no.7-B, Tirth Apartment, Lallubhai Park, Andheri (West), Mumbai, to the petitioners by unsealing the said flat. c) That this Honourable Court be pleased to call for the record and proceedings from the office of the respondent no.2 pertaining to the order of forfeiture dated 22/11/2009 passed under Section 7 of the SAFEMA Act, and after perusing the same this Honourable Court be pleased to issue appropriate order and direction to the respondent no.2 to hand over the peaceful possession of the said flat to the petitioners.” 2. It appears that Flat No.7-B, Tirth Apartment, Lallubhai Park, Andheri (West), Mumbai was owned by Mr. Mahesh Kantilal Zaveri and who had mortgaged the said flat to the United Commercial Bank for borrowing loan. On account of his being a defaulter the Bank initiated proceedings against him under the Securization Act by issuing a notice under Section 13(2) of the said Act and ultimately the lending Bank claimed to have taken over the paper possession of the said property 3 wp-280-2010 sometimes in July 2006. 3. As per the petitioners somewhere in December 2008 Mr.Mahesh Zaveri came in their contact and sold the flat to them for valuable consideration and the petitioners had made part payment whereupon an agreement for sale was registered with the Competent Authority on payment of requisite stamp duty. It is also the case of the petitioners that in January 2009 they were put in possession. It is their case that it was not in their knowledge that UCO Bank had already taken a symbolic possession and the said Bank approached the Metropolitan Magistrate under Section 14 of the Securitisation Act and took forcible possession of the suit flat from the petitioners. Being aggrieved by this action of the Bank the petitioners filed an appeal under Section 17 of the Securtisation Act before the Debt Recovery Tribunal at Mumbai. As directed by the Tribunal the petitioners deposited an amount of Rs.1,30,36,436/- (Rupees one crore thirty lakhs, thirty six thousand four hundred and thirty six only) with the Bank and consequently on 23/5/2009 the suit flat came to be sold by the Bank to the petitioners as per the order dated 21/5/2009 passed by the Tribunal. The amount of Rs.1,30,35,436/- was directed to be released to the Bank and the Bank was in turn directed to issue a sale 4 wp-280-2010 certificate. Such a certificate was issued on 23/5/2009 and the petitioners in fact also registered the said certificate of sale and paid the requisite stamp duty amounting to Rs.6,34,500/-. 4. However, somewhere in September 2009 the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short “SAFEMA”) visited the suit flat along with the police and forcibly dispossessed the petitioners in spite of the fact that the petitioners had brought to the Competent Authority’s notice the the order passed by the Debt Recovery Tribunal on 21/5/2009. The petitioners made representations on 25/9/2009 but they could not receive possession of the flat. They came to know that Mr.Mahesh Zaveri had challenged the order passed by the Competent Authority on 22/11/1999 before the Delhi High Court in Writ Petition No.5946 of 2000 and, therefore, they made an application for intervention but without success. The said petition was dismissed on 26th July 2010. This order came to be challenged in LPA No.737 of 2010 by Mr.Zaveri and the LPA was disposed on 15/3/2011 by granting liberty to the appellant to file a review petition before the Single Bench. It appears that Review Petition No.203 of 2011 also came to be dismissed on 20/5/2011 by the Single Bench of 5 wp-280-2010 the Delhi High Court and thereafter Mr.Mahesh Zaveri has filed LPA No. 494 of 2011 which has been admitted on 26th May 2011. 5. We have given this elaborate sequence of events in respect of the subject property so as to note that the petitioners’ prayers before this Court cannot be considered de hors the pending proceedings before the Delhi High Court i.e. LPA No.494 of 2011. The Competent Authority under the SAFEMA had passed the order on 22/11/1999 i.e. much before the Uco Bank had exercised its powers under Sections 13 and 14 of the Securitizations Act. Even as per the petitioners they had purchased the suit flat from Mr. Mahesh Zaveri sometimes in January 2009 i.e. almost after ten years after the Competent Authority had passed an order forfeiting the property. Whether this order was brought to their notice by Mr.Zaveri or not is a totally different aspect and unless that order is nullified by a competent forum, Mr.Zaveri’s titile to dispose it off or for that matter the Uco Bank’s right to take over the possession under the Securitisations Act cannot be relied upon by the petitioners. The petitioners will have to wait for the outcome in the pending LPA or approach the appropriate forum if their intervention application in the pending LPA is not entertained by the Delhi High Court. So far as this 6 wp-280-2010 petition is concerned, we have no doubt in our mind that it cannot be entertained at least at this stage and hence the same is dismissed as such. This order is without prejudice to the rights of the petitioners to approach the appropriate forums. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)