:1: :1: :1: srp. HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1760 OF 2009. WRIT PETITION NO. 1760 OF 2009. WRIT PETITION NO. 1760 OF 2009. Mrs. Meherunissa Huseini & Anr. ..Petitioners. Versus. The Zoroastrian Co-operative Bank Limited and Others. ..Respondents. --- Mr. V. R. Dhond with Mr. J. Mitra, T. N. Tripathi and Sapna Rachure i/b M/s. T. N. Tripathi & Co., for the petitioner. Mr. Amol Doijode for the respondent no.1.. Mr. V. S. Masurkar,G.P. for the State. Mr. M. Sharma for respondent no.2. CORAM: S. B. MHASE & CORAM: S. B. MHASE & CORAM: S. B. MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE: January 29, 2009. DATE: January 29, 2009. DATE: January 29, 2009. P.C. P.C. P.C. 1. Heard at length. This petition can be disposed of in view of the concessions given by the counsel on both sides. 2. Respondent - Co-operative Bank has issued a notice under section 13(2) of the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), 2002 (for short "the Act".) The contention of the petitioner is that the said Act is not applicable to the Co-operative Banks and the :2: :2: :2: judgment of this Court in the matter of Khaja Industries Khaja Industries Khaja Industries v/s. State of Maharashtra & Another, v/s. State of Maharashtra & Another, v/s. State of Maharashtra & Another, reported in 2007(6) Mh.L.J., 712, is not the final word of law in this respect since the said judgment is under challenge before the Apex Court and the Apex Court has granted stay in the SLP. The order to that effect has been produced on record. Therefore, the issue in respect of the application of the said Act to the Co-operative Banks is pending before the Apex Court. . Under these circumstances, Mr. V. R. Dhond, counsel appearing on behalf of the petitioner made a fair suggestion and gave a concession that the respondent-bank may take the symbolic possession of the property in view of the notice issued under section 13(2) of the Act, instead of actual physical possession. He submitted that the property, namely, the secured asset is the running factory unit and godown, and if the physical possession is taken by the bank, the manufacturing activity will come to a standstill. He, therefore, showed a willingness to give a symbolic possession to the bank so that he can approach the Debt Recovery Tribunal (DRT) under section 17 of the Act by filing an appeal and/or for appropriate protection orders, namely, to prohibit the bank from taking the physical possession of the secured assets. 3. Learned counsel for the respondent - bank :3: :3: :3: submitted that the bank is ready to take the symbolic possession from the petitioner, however, bank is not aware of the fact that whether the unit is the running factor or not. He further submitted that they will maintain the symbolic possession only for a period of 10 days and within the said period the petitioner may obtain the appropriate protection orders from the DRT. He also submitted that if the protection orders are not obtained by the petitioner from the DRT within the aforesaid period of 10 dyes, the bank will take the physical possession of the secured assets and will proceed in accordance with law. 4. In view of the aforesaid concession, we pass the following order. : O R D E R : (i) The petitioner shall hand over and the respondent - Bank shall take the symbolic possession of the secured assets in view of the notice dated 19th September 2007 issued under section 13(2) of the Act. (ii) Petitioner may thereafter within a period of 10 days, approach the DRT by filing an appeal and/or any other appropriate legal proceedings and may obtain the appropriate :4: :4: :4: protection orders on its own merits. (iii) We make it clear that we have not considered the matter on merit and it is for the DRT to consider all issues and whether to grant or not the interim relief as may be claimed by the petitioner. (iv) We further make it clear that if for whatsoever reason the petitioner could not obtain the interim relief as against the respondent - Co-operative Bank within the aforesaid period of 10 days, the respondent - bank is at liberty to proceed as per the notice under section 13(2) and may take the physical possession of the secured assets. (v) With these directions, Petition is disposed of. (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.)