AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7648 OF 2009 M/s. Mehta Intertrade Steels Pvt. Ltd. ... Petitioners Vs. The State of Maharashtra & Ors. ... Respondents Mr. F.E. De’Vitre, senior counsel with Mr. Zal Andhyarujina i/b Nainesh Amin for the petitioners. Ms. M.P. Thakur, A.G.P for the State. Mr. Pravin Samdani, senior counsel with Mr. Rafique Peermohidin, Mr. Manish Desai, Mr. Amit Jajoo and Mr. Saket More i/b Paras Kubad & Associates for respondent 4. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATED : 8TH SEPTEMBER, 2009. P.C.:- 1. Writ Petition No.2591 of 2009, which is listed today along with the above petition, is filed by the Export Import Bank of India (for convenience, “the Exim Bank”), who is a AJN 2 secured creditor. In that petition, the basic case of the Exim Bank is that order dated 22/9/2008 passed by the District Magistrate, Raigad - Alibaug, under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short, “the NPA Act”) is not being implemented. That petition appeared on our board on 27/8/2009. We directed that the petition be placed for admission after two weeks. We directed the Tahsildar to implement order dated 22/9/2008 in the meantime. It appears that on 17/11/2008, the Tahsildar took possession of two pieces of land which were in possession of the original borrower. 2. Pursuant to our direction, the Tahsildar took steps to implement order dated 22/9/2008 and to take possession of the land and the factory premises. Therefore, yesterday, i.e. 7/9/2009, the above petition was moved urgently in our chamber at 5.00 p.m by the petitioners – M/s. Mehta Intertrade Steels Pvt. Ltd., who claimed to be in possession of the land and factory premises, after AJN 3 giving notice to respondent 4 i.e. the Exim Bank. Learned counsel for the Exim Bank was present. We were told by learned senior counsel for the petitioners that the Tahsildar is likely to take possession of the factory premises, dishouse the workers and close the factory premises. We directed the office to place the above petition on our board today i.e. 8/9/2009 for admission. Learned senior counsel for the petitioners requested us that some interim order may be passed in their favour so that the factory is not closed and the workers are not dishoused. At that stage, Mr. Rafique Peermohidin, learned counsel appearing for respondent 4 made a statement that possession of the land and the factory premises is not taken and that it will not be taken till the next day i.e. 8/9/2009. We must note that Mr. Masurkar, learned G.P. was also present at that time. Relying on this assurance, we did not hear the the parties on interim reliefs. We believed that the assurance given by the counsel will be abided by, and respondent 4 and the Tahsildar will stay their hands till today. AJN 4 3. Mr. De’Vitre, learned counsel for the petitioner tells us that despite the above assurance given to us at 5.00 p.m. yesterday, the possession of the land and the factory premises was taken last evening and the whole process was completed by about 8.45 p.m. Affidavit is filed by Mr. Rajendra B. Mehta, who is stated to be the authorized representative of the petitioners to the above effect. A copy of the panchanama is also tendered in the court. It, however, states that the entire exercise was completed by 5.30 p.m. Learned senior counsel for the petitioners made a grievance that the sentence that “the possession was taken by 5.30 p.m.” was added afterwards. Mr. Samdani, learned senior counsel for respondent 4 – the Exim Bank states that the possession was taken by 5.30 p.m. It was suggested to us that, in any case, the possession was taken by the Tahsildar and respondent 4 has no control over the Tahsildar. 4. We are informed by Ms. Thakur, learned A.G.P. that AJN 5 Mr. Masurkar, learned G.P. had contacted the Tahsildar last evening and that the Tahsildar informed him that the possession was already taken. 5. There is no dispute about the fact that possession of the land and factory is now taken by the Exim Bank. One thing is certain that the assurance given to us is not abided by. If learned counsel for respondent 4 was not confident about contacting his client’s representative, who was at the site so as to prevent further action, he should not have made such a statement. The State should have also told us that it was not possible to contact the Tahsildar. Mr. De’Vitre has told us that the petitioners had communicated the assurance given to this court by learned counsel for Exim Bank to Mr. Bhade, the Circle Officer. We are unhappy about the entire episode. We expect the counsel to make statement in the court with a sense of responsibility. We deprecate the conduct of the respondents in not abiding by the statement made by their counsel in the court if the statement made in the AJN 6 court was communicated to them. 6. Mr. De’Vitre, learned senior counsel appearing for the petitioners submitted that in the circumstances of the case, this court should put the petitioners back in possession. He submitted that the petitioners are prepared to give a bank guarantee for a sum of Rs.1 crore or deposit an amount of Rs.1 crore in this court, which according to them is the estimated value of land. Mr. Samdani, learned senior counsel appearing for respondent 4 objected to Mr. De’Vitre’s statement that the estimated value of the land is Rs.1 crore. Though we have expressed dissatisfaction about the conduct of the respondents in respect of the assurance given to this court, we are unable to accede to Mr. De’Vitre’s request because, in our opinion, the petitioners have a remedy of approaching the Debts Recovery Tribunal under Section 17 of the NPA Act. Orders regarding possession will have to be passed strictly in accordance with law, having regard to the relevant judgments of the Supreme Court AJN 7 and of this court. 7. Mr. De’Vitre states that the petitioners will file an application under Section 17 of the NPA Act before the Debts Recovery Tribunal and in that they will prefer an application for ad-interim reliefs. If such an application is made for ad-interim reliefs, in the peculiar facts and circumstances of the case, we direct the Debts Recovery Tribunal to consider the same and pass appropriate orders thereon at the earliest and, at any rate, within a period of two weeks from the date of filing of such application. 8. We make it clear that we have not expressed any opinion on the merits of the case. The application, if any, may be decided independently and on its own merits. 9. The petition is disposed of in the aforestated terms. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]