1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2907 OF 2008 Thane Janta Sahakari Bank Ltd. .. Petitioners. Vs. M/s.Z.R.Varma & Ors. .. Respondents. Mr.P.S.Dani for the petitioners. Mr.J.B.Kocheta for respondent no.1. Mr.P.L.Bhujbal i/b Mr.P.D.Purway for respondent no.4. Coram : D.B. BHOSALE, J. Dated : 23RD SEPTEMBER, 2009 P.C. . Heard learned counsel for the parties. 2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. By consent, the petition is taken up for hearing and final disposal at the admission stage itself. 3. By this writ petition the petitioners have impugned the order dated 5.5.2007 passed by the District Magistrate, Pune, on the application filed by the petitioner-bank under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “the Act”). By this order the learned Magistrate has rejected the application filed by the petitioners. The relevant observations made by the 2 learned Magistrate in the impugned order reads thus: “Notices were given to the opponents for personal hearing to give an opportunity as required by the principal of natural justice. At the time of the hearing, borrower remained present before me, they admitted that the properties in question of the bank, and that they failed to pay the outstanding loan amount of bank. Meanwhile the third party Mrs.Shital Rajendra Varma remained present before me and submitted her written say and relevant documents. As per documents produced it can be seen that the said mortgage property which was owned by father of opponent No.1 and after the death of the father of opponent no.1 the names of Mrs.Sayrabai Varma & Ganpatlal Varma were recorded in the property card which shows that opponent No.1 is only one co-owner of undivided property. The applicant failed to prove that the property is secured asset and security interest is created in their favour.” 4. There is no dispute that a notice under section 13 against respondent nos.1 to 3 was issued on 23.12.2003. That notice, admittedly, was not challenged by respondent nos.1 to 3 by way of an appeal as provided for under section 17 of the Act. In view thereof the petitioners filed the application under section 14 of the Act. It appears that respondent no.4 filed an application on 23.9.2005 for impleading her as a party opponent in the application filed by the petitioner-bank under section 14 3 of the Act. That application of respondent no.4 was not considered on merits and remained undisposed till the impugned order was passed. The learned Magistrate, however, while rejecting the application filed by the petitioners has solely relied upon the averments made in her application seeking her impleadment as party-respondent in these proceedings. He has proceeded on the assumption that whatever has been stated by her in the application is true and that she has a right in the property and respondent no.1 is only the co-owner of undivided property. The learned Magistrate has further proceeded to hold that the petitioner has failed to prove that the property is secured asset and that the secured interest is created in their favour. The learned Magistrate, in my opinion, ought not to have rejected the application solely relying upon the averments made by respondent no.4 in her application for impleadment and/or in the subsequent application filed by her. In my opinion, third party, such as respondent no.4 in these proceedings, has no right to intervene in the proceedings arising from the application under section 14 of the Act and the Magistrate is expected to examine the case on the basis of the documents on record and proceed to pass order in accordance with law. Insofar as rights of respondent no.4 are concerned, apart from the fact the petitioners have denied her rights in the suit property, it is always open to respondent no.4 to either file 4 appeal under section 17 of the Act or to adopt any other remedy, if any, available in law for appropriate relief. In the circumstances rule is made absolute. The impugned order dated 5.5.2007 is set aside. The application filed by the petitioners under section 14 of the Act is restored to file. The learned Magistrate shall decide the application afresh within a period of 12 weeks from the date of receipt of this order after giving an opportunity of being heard to respondent nos.1 to 3. This order shall not preclude respondent no.4 from adopting a remedy as may be available in law for redressal of her grievance. All contentions of the petitioners and respondent nos.1 to 3 insofar as the petitioners’ application under section 14 of the Act is concerned, are kept open. I shall not be understood to have expressed any opinion on the rights of respondent no.4. Her all contentions are kept open. With these observations the writ petition is disposed of. (D. B. Bhosale, J.)