1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5393/2004 Jalgaon Peoples Cooperative Bank Ltd. Jalgaon, 152, Polan Peth, Dana Bazar, Jalgaon, Through its Assistant General Manager Legal and Recovery, Vinod Mahipat Zambre age 53 years, Occ-Service resident of Jalgaon. .. PETITIONER VERSUS 1] The President, Maharashtra Rajya Sahakari Sangh,5, B.J.Road, Pune M.S. 2] The Principal, Cooperative Training Centre Near Nutan Maratha College, Jalgaon, Through Shri Ramdas Maruti Dhage Age 52 years, Occ-Service residing at Jalgaon Cooperative Housing Society, Plot No.22, behind District Court, Jalgaon, Ta. & Dist.Jalgaon. 3] Yadav Hari Sarode Deceased Through its legal heir Shivaji @ Anant Madhavrao Sarode age 42 years, Occ-business, residing at 14, Navi Peth, 2 Station Road, Jalgaon. .. RESPONDENTS [NO.1 AND 2 ORIG.PLAINTIFF NO.3 ORIG.DEFENDANT NO.1] ... Shri N.D.Sonawane h/f Shri V.D.Hon,Advocate for petitioner Shri A.G.Talhar,Advocate for respondents No.1 & 2. Shri B.V.Dhage, Advocate for respondent no.3. .... CORAM : R.K.DESHPANDE,J. DATE : 13/8/2010. ORAL JUDGMENT: 1] This Writ Petition challenges the order dated 23/7/2004 passed by learned Joint II Civil Judge, Junior Division, Jalgaon, below Exh.25 in Regular Civil Suit No.139/2004. The petitioner is the Cooperative Bank and had issued notice dated 14/5/2009 under Section 13 (1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securitisation Interest Act, 2002 (hereinafter referred to as the “Securitisation Act” for short) to the respondents no.1 and 2, who are the tenants in respect of the suit property, for delivery of possession. The respondent no.3 herein is the owner of the property and the landlord of respondent nos.1 and 2. He is also the borrower of the petitioner bank, against whom also the notice dated 12/2/2004 was issued under Section 13(1) of the Securitisation Act, for recovery of an amount of Rs.78,43,118/- outstanding as on that date. 3 2] With the apprehension of dispossession from the suit premises in view of notice dated 14/5/2004, respondents no.1 and 2 the tenants in respect of the suit property filed Regular Civil Suit No.139/2004, seeking declaration that the notice dated 14/5/09 issued by the petitioner bank which is the defendant no.2 in the said Civil Suit, is not binding upon the plaintiffs. Further relief of perpetual injunction was also claimed in the said civil suit restraining the petitioner who is defendant no.2 in the said suit from taking over the possession of the property from the plaintiff. Alongwith the said Civil Suit, an application for temporary injunction under Order 39 Rule 1 and 2 of Civil Procedure Code was also filed restraining the petitioner defendant no.2 from disturbing the possession of the plaintiffs over the suit property. The trial Court has passed an order of status quo, which is operating till date. 3] In response to the suit summons, the petitioner bank put its appearance and filed an application under Section 9A of C.P.C., raising preliminary objection regarding jurisdiction of the Civil Court to entertain, try and decide the said civil Suit challenging notice dated 14/5/2004 issued under Section 13(1) of the Securitisation Act, in view of the bar crated by Section 34 of the said Act. This was opposed by the plaintiffs by filing their reply. The trial Court framed preliminary issue as to whether the Civil Court has jurisdiction to entertain the suit. The same is answered in the affirmative by an order dated 23/7/2004 4 passed below Exh.25 filed by the petitioner bank. 4] Being aggrieved by the order dated 23/7/04 passed below Exh.25, in Regular Civil Suit No.139/04 the petitioner bank has preferred this Writ Petition. On 11/10/04 this Court granted Rule and also passed an interim order in terms of prayer clause "C" of the petition. As a result of this interim order, the proceedings of Regular Civil Suit No.139/04 pending in the Court of II Joint Civil Judge, J.D. Jalgaon are stayed. The trial Court had also passed an order of status quo on the application Exh.5 under Order 39 Rule 1 and 2 filed by the respondents 1 and 2 original plaintiffs. As a result, no proceedings under Section 13 of the Securitisation Act have been carried forward either against the original borrower or against the tenants. Similarly, since proceedings of civil suit are also stayed, there is no progress in the matter and the amount of dues outstanding is increasing day by day. 5] The challenge in the Regular Civil Suit No.139/04 is by the tenants to the notice dated 14/5/04 issued under Section 13(1) of the Securtisation Act. Perusal of this notice, issued by the bank shows that the bank has called upon the plaintiffs- tenants, to deliver the possession of the suit property otherwise, the action in terms of the Securitisation Act, shall be taken. The learned counsel appearing for the petitioner has made a categorical statement that by this notice dated 14/5/04, 5 the petitioner bank intended to take only symbolic possession of the suit property from the owner i.e. the respondent no.3, who is the borrower of the petitioner bank. It is further statement made by the petitioner bank that plaintiffs tenants in the suit property shall not be evicted except by following due process of law. The learned counsel further submits that the issuance of notice dated 14/5/04 was only with an intention to intimate the tenants that the principal borrower is being proceeded with in accordance with the provisions of Section 13 of the Securitisation Act. 6] In view of the fact that notice dated 14/5/2004, was issued to the tenant only by way of an intimation and that the undertaking is given by petitioner bank that the tenants shall not be evicted and physical possession shall not be taken except in accordance with law, the cause of action for filing any civil suit by the tenants, apprehending their dispossession from the suit property itself does not survive and therefore the suit shall stand dismissed. It is however, made clear that in the event if any action is taken by the petitioner bank, for eviction of the tenants and taking physical possession from them, then it shall be open for the plaintiffs-tenants to adopt such appropriate remedies as are available to them in the eyes of law and the dismissal of suit shall not come in the way of plaintiffs. With the aforesaid observations, Writ Petition is thus allowed. Regular Civil Suit No.139/04 filed by respondent 6 tenants, stands dismissed. Interim order of status quo passed by trial Court and the stay of proceedings of civil suit, would naturally stand vacated. No costs. 7] In view of disposal of Writ Petition, Civil Application Nos. 9238/09 and 11069/04 stand disposed of. [R. K. DESHPANDE, J.] umg/wp5393-04