1 CP No. 284 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CONTEMPT PETITION NO. 284 OF 2010 in CIVIL APPLICATION NO. 10609 OF 2009 and CIVIL APPLICATION NO. 8237 OF 2010 in FIRST APPEAL NO. 2749 OF 2009 Mrs. Sanyogita N. Jadhav, Aged 37 years, Occupation Business, Resident of 18, 34, N-3, CIDCO, Aurangabad Petitioner V E R S U S 1. Shri. S.G. Shete, Chief Metropolitan Magistrate, Esplanade, Mumbai. (Contempt Petition dismissed against him vide order dated 23rd November, 2010) 2. Abhyudaya Co-operative Bank Ltd. Having its Administrative Office at K.K. Tower, Abhyudaya Bank Lane, Off. G.D. Ambekar Marg, Parel Village, Mumbai 400 012 through its Managing Director. Respondents Mr. A.M. Karad, Advocate, holding for Mr. S.D. Karkare, Advocate for the petitioner Mr. V.D. Salunke, Advocate, holding for Mr. S.S. Deve, Advocate for the respondent No.2 Mr. N.V. Gaware, Advocate for respondent No.3 CORAM : A.V. NIRGUDE, J. DATED : 4th March, 2011 ORAL JUDGMENT : 1. Request of Mr. A.M. Karad, Advocate, for adjournment is rejected. 2. This Contempt Petition is already dismissed on 23rd November, 2010, as against the respondent No. 1, who had passed a judicial order on 15th June, 2010, as the Chief Metropolitan Magistrate, 2 CP No. 284 of 2010 Esplanade, Mumbai. 3. The petitioner's main grievance is as follows : The petitioner is the owner and possessor of certain property. The respondent No. 2 is a Co-operative Bank, who had lent few Crore rupees as loan to the petitioner's company and co-directors. Since the petitioner's Company committed default, an action under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, was initiated, and pursuant to such action, preliminary notice under Section 13 of the Act was issued on 1st June, 2009. By this notice, the authorized officer directed the petitioner and others to remit the payment, else the mortgaged property would be taken in possession. The petitioner then filed a civil suit in the Court of Civil Judge, Senior Division, Aurangabad for declaration that she stood discharged from her liability due to innovation of the contract. She also sought interim relief for protecting her property from the action initiated on 1st June, 2009. The Civil Court rejected the plaint, against which she filed First Appeal No. 2749 of 2009 before this Court. This Court as an interim relief prevented the respondent No. 2 from taking coercive action against the petitioner's property on 5th May, 2010 and such order was in force till 11th July, 2010. However, the Bank, prior to 5th May, 2010, moved an application to the learned Chief Metropolitan Magistrate, Esplande, Mumbai, under Section 4 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, to provide them assistance for taking possession of the property of the petitioner. In support of this application the respondent / bank made an affidavit on 4th November, 2009, in which they avoided making a 3 CP No. 284 of 2010 reference to the First Appeal which the petitioner had filed before this Court in October, 2009, a notice of which is already been given to the respondent / bank. 4. The petitioner is now seeking action under Contempt of Courts Act, against the bank for making a false statement on affidavit. 5. No doubt, despite of the knowledge of the pendency of the First Appeal No. 2749 of 2009, the bank did not mention it in the affidavit filed in November, 2009 before the learned Chief Metropolitan Magistrate, Esplande, Mumbai. The question is whether this Court should take this lapse on the part of the bank seriously enough to issue rule in this case? The answer to this question is in negative. The bank, it appears, forgot to make mention about pendency of the First Appeal in their affidavit. They had referred to pendency of Writ Petition filed by the petitioner in their affidavit. This Writ Petition filed by the principal debtor, was at the relevant time pending before this Court. This Writ Petition was also filed for similar purpose to prevent the bank from taking coercive action against the petitioner. Even in the Writ Petition the petitioner had not obtained any preventive order as said above. Even in the First Appeal in November, 2009, interim order preventing the bank taking coercive action against the petitioner was passed. So, when the affidavit was filed before the learned Chief Metropolitan Magistrate, Esplande, Mumbai, there was no order passed by this Court for preventing the bank from taking coercive action of possession against the petitioner. So, even if the bank had forgotten or purposely avoided to make a reference in the affidavit about the pendency of the First Appeal, they could not adversely influence the learned Chief Metropolitan Magistrate, Esplande, 4 CP No. 284 of 2010 Mumbai, in passing of the expected order. In other words, even if the bank did not refer to the pendency of the First Appeal No. 2749 of 2009, that would not have changed the out come of the litigation before the learned Chief Metropolitan Magistrate, Esplande, Mumbai. It is pertinent to mention the fact that from November, 2009 till May 2010, despite of the initiation of the action under Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, no coercive action was taken. 6. This so called false statement practically did not make any difference to the positions of the parties, as far as the possession of the petitioner’s flat is concerned. Admittedly, pursuant to the order passed by the learned Chief Metropolitan Magistrate, Esplande, Mumbai, the bank did not take possession of the flat belonging to the petitioner. The bank did not visit the flat after passing of the order by the learned Chief Metropolitan Magistrate, Esplande, Mumbai. This position is continued for quite some time, and for the first time in May, 2010 i.e. six months thereafter, this Court passed a protective order in favour of the petitioner in her first Appeal No. 2749 of 2009 and directed the bank not to take coercive action against the petitioner. It is pertinent to mention the fact that from November, 2009 till May 2010, despite of the initiation of the action under section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the bank prima facie did not take any coercive action at least against the petitioner. In view of these facts, though the petitioner has placed reliance on the two judgments, one of Division Bench of this Court in the case of “The 5 CP No. 284 of 2010 Kapol Co-operative Bank Ltd., through its Senior Officer, Rajendra Pruthviraj Satam Vs. State of Maharashtra & ors., reported in 2005 Criminal Law Journal, 765” and the Hon’ble Supreme Court in the case of “U.P. Resi. Emp. Co-op. House B. Society and Ors. Vs. New Okhla Indus. Deve. Authority and Anr., reported in AIR, 2003 SC 2723”. I am not inclined to initiate an action against the respondent / bank. In view of this, Contempt petition stands dismissed. O R D E R A] Contempt Petition is dismissed. ( A.V. NIRGUDE, J. ) SDM*/CP284.10/CP284.10ok