: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1943 OF 2009 Exim Bank of India & Anr. .. Petitioners v/s. The State of Maharashtra & Ors. .. Respondents ........ Mr. Navraj Seervai, Sr. Counsel a/w. Ranbir Singh, D.K. Sinha, Jay Kansara and Ms. Nidhi Singh i/by M/s. Vidhii Partners for petitioners. Mr. D.P. Adsule, APP for State Mr. Mahesh Kotian for respondent No.3 Mr. J.D. Khairnar for respondent No.4 Mr. J.A. Bagaria with Mr. Ramesh Siroya for respondent No.8. Ms. Sapana Ruchure i/by M/s. T.N. Tripathi & Co. for respondent No.7. ........ CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. Dated : 15th December, 2009. P.C. : 1. Rule. 2. Rule made returnable forthwith. By consent taken up for final hearing. Respondents waive service. : 2 : 3. This petition was originally listed on the Civil Side and pursuant to the order passed on 28.04.2009 by the Division Bench, it was directed to be listed before the Division Bench dealing with Criminal Writ Petitions and hence it came to be registered as a Criminal Writ Petition. It impugns the order passed by the Special Court under the MPID Act in Special Case No.34 of 2004 on 7.02.2009. By the said order, Miscellaneous Application (Exh.3) filed by the present respondent Nos.3 and 4 came to be allowed and the present bank along with other two banks i.e. the Central Bank of India and Cosmos Co-op. Bank Ltd. as well as their officers were directed to restore the possession of the property belonging to M/s. Vivita Ltd. (original applicant No.2) located at Naigaon, Pune - Mumbai Road, P/o. Kamshet Tal. Maval, Dist. Pune to the Collector of Mumbai (competent authority). 4. It was submitted by Mr. Seervai, the learned Senior Counsel appearing for the petitioner bank that at the fist place there was no valid attachment in law of the subject property as required under Section 4 of the MPID Act in as much as no Notification was published in the official gazette regarding the order passed by the Government attaching the property of M/s. Vivita Ltd. during the course of investigation ordered u/s : 3 : 156(3) of Cr.P.C. by the learned Special Judge and in any case the impugned notice of recovery issued by the bank u/s. 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’) on 7.01.2007 and the subsequent possession taken on 30.01.2009 could have been a subject matter of challenge by filing an appeal u/s. 17(4) of the said Act by the petitioner company i.e. M/s. Vivita Ltd. As per Mr. Seervai, the impugned order passed by the learned Special Judge is, therefore, without jurisdiction and consequently the remedy of appeal available u/s.11 of the MPID Act, would not be a bar to entertain this Writ Petition. 5. The Application at Exh.3 filed by M/s. Vivita Ltd. prayed for the substantial relief, which reads thus:- This Hon’ble Court may be pleased to seize the premises forthwith and restore the status-quo of the property at Naigaon, Pune - Mumbai Road, P/o. Kamshet Tal. Maval, Dist. Pune, Maharashtra together with all pending structures thereon and all plant and machinery attached to the earth or permanently fastened to anything attached to the earth to the applicants. It is thus clear that the relief prayed for by M/s. Vivita Ltd. as well as its Managing Director was to nullify or to set aside the notice issued u/s. 13(2) of the SARFAESI Act and consequent possession taken over by the : 4 : petitioner bank on 28.01.2009. We are also informed that pursuant to the impugned order passed, the petitioner surrendered the possession and the property is claimed to be in possession with the EOW of the Mumbai Police, though on paper. 6. The remedy for M/s. Vivita Ltd. was undoubtedly somewhere else and not before the Special Court, if they wanted to challenge the notice issued u/s. 13(2) of the said Act or the possession taken over by the petitioner bank of the property which is claimed to be under attachment at the instance of the EOW of Mumbai Police and, therefore, Mr. Seervai is right in his submissions that the learned Special Judge did not have the power to entertain and allow the application. The order impugned is thus without jurisdiction and consequently the remedy of appeal u/s. 11 of the MPID Act to challenge the impugned order would not come in our way to entertain this petition. 7. This Court by its order dated 20.11.2009 had directed the State Government to file an affidavit in reply along with the gazette notification publishing the attachment order as per Section 4(II) of the Act. The said direction was repeated in the order dated 04.12.2009 and consequently the affidavit in reply has been filed by Shri Rakesh Maria, Joint : 5 : Commissioner of Police (Crime Branch) along with a copy of the notification dated 30.09.2003. In our opinion, this notification would not help M/s. Vivita Ltd. or any of its Directors. Firstly, the notification is for attachment of cash of Rs.1,20,00,000/- of M/s. Roofit Industries Ltd. and Sun Earth Ceramics Ltd. and it does not attach any immovable or movable property, leave alone the property of M/s. Vivita Ltd. Hence, in the eyes of law, there is no attachment of the property of M/s. Vivita Ltd., as of now. 8. On both these grounds the petition succeeds and, therefore, the impugned order which is passed without jurisdiction deserves to be quashed and set aside. As noted earlier, the EOW of Mumbai Police claims to have taken possession on 15.02.2009 but there is no attachment as required u/s. 4(ii) of the MPID Act of the property of M/s. Vivita Ltd. and hence, the property must be restored to the petitioner bank. At the same time, the attachment notice dated 7.01.2007 or the possession taken by the petitioner bank could be quationed by M/s. Vivita Ltd. or any of its directors and that remedy will have to be under the SARFAESI Act i.e. to say that none of them are remedyless to claim the repossession of the property. They must be given reasonable time to initiate such proceedings according to the SARFAESI Act and during this period the petitioner bank is required to be restrained from creating any third party interests in any : 6 : form, on the said property. 9. Hence, the petition is allowed and the impugned order dated 07.02.2009 passed by the learned Special Judge under the MPID Act is hereby quashed and set aside. 10. This order does not prevent M/s. Vivita Ltd. or its directors to approach the competent forum under the SARFAESI Act to challenge the possession taken over by the petitioner bank of its property, as may be permissible under the said Act and if such proceedings are initiated within a period of 4 weeks from today, we direct the petitioner bank not to create any third party interests in any form on the said property for a period of 2 months from today. The EOW of Mumbai Police to handover the possession of the property latest by 31st December, 2009 to the petitioner bank. 11. Mr. Siroya, the learned Counsel appearing for respondent No.8 at this stage submitted an oral application for stay of this order. The application is hereby rejected. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]