PNP 1 WP6615-16.8.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6615 OF 2011 M/s. Sagar Minerals and others ..Petitioners. versus Bank of Maharashtra and others ..Respondents. ..... Mr. Rishabh Shah with Mr. Sujeet G. Kurup for the Petitioners. Mr. V.N. Ajitkumar i/b VNA Legal for Respondent No.1. ...... CORAM : DR.D.Y.CHANDRACHUD & A.A. SAYED, JJ. 16 August 2011. P.C. : 1. Mentioned. Not on Board and taken up for admission on the request of Counsel appearing on behalf of the Petitioners and Counsel appearing on behalf of the First Respondent. 2. The Petitioners have challenged an order passed by the Debts Recovery Tribunal on 1 October 2010 in these proceedings under Article 226 of the Constitution. The order of the Debts Recovery Tribunal has been passed in an interim application taken out in a substantive appeal filed under Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. By the order the Petitioners have been directed to deposit an amount of Rs.3,50,000/- to their loan account maintained with the First Respondent within a period of four weeks. Though the PNP 2 WP6615-16.8.sxw order was passed on 1 October 2010 and the period of four weeks has long since expired, the Petitioners have failed to deposit the amount as directed. Failing deposit, the Tribunal permitted the bank to take measures under the Act for the recovery of the debt. 3. Counsel appearing on behalf of the First Respondent bank placed on record a compilation containing an application filed by the Petitioners for extension of time to effect deposit. That application, the Court is informed, was dismissed on 2 November 2010. The Court has been informed that in March 2011 the Petitioners filed an appeal before the Debts Recovery Appellate Tribunal against the original order dated 1 October 2010, but no steps were taken to pursue either the appeal or any application for interim relief therein. The term of the chairperson of the Debts Recovery Appellate Tribunal came to an end on 20 July 2011. These proceedings under Article 226 have been instituted on 22 July 2011. The Court has been moved for urgent relief since the bank has moved under Section 14 and as a matter of fact an order authorising the bank to take forcible possession was passed on 16 June 2009. The apprehension is that the bank is now likely to take forcible possession. 4. Since the Petitioners have already taken recourse to the alternate remedy of an appeal against the original order of the Debts Recovery Tribunal dated 1 October 2010, this Court would not have been inclined to entertain the petition under Article 226 of the Constitution. Counsel appearing on behalf of the Petitioners, however, submitted that the Petitioners are ready and willing to deposit an amount of Rs.3.50 lacs immediately in compliance with the order of PNP 3 WP6615-16.8.sxw the Tribunal dated 1 October 2010. On this basis it was urged before the Court that an extension of time should be granted. We were not inclined to entertain this request. The Petitioners have failed to comply with the order of the Tribunal which was passed over ten months earlier. An application for extension of time was made before the Tribunal which was refused. Thereafter an appeal was filed before the Debts Recovery Appellate Tribunal but no application for interim relief was moved. Having regard to this factual position, we have found merit in the contention which has been urged on behalf of the Respondent bank that the Petitioners should be now placed on terms that would require them to deposit atleast a substantial amount in order to obviate the consequences of the bank taking forcible possession. Counsel appearing on behalf of the Petitioners has stated that the bank is now proposing to take possession of the only residential flat and that another property has already been sold in 2008. Counsel for the bank states that the other property was sold in 2008 and an amount of Rs.11.55 lacs was realized. Counsel states that even after giving credit for the aforesaid amount, an amount of Rs.20,03,550/- is due and outstanding as on 27 July 2011. 5. In view of the submission which has been urged on behalf of the bank, Counsel appearing on behalf of the Petitioners stated that the Petitioners would deposit (i) an amount of Rs.5 lacs with the Respondent bank by 20 August 2011; (ii) a further amount of Rs.5 lacs within a period of one month from today. Counsel appearing on behalf of the Respondent bank states that if the Petitioners deposit the aforesaid amount, the bank will not take forcible possession of the secured asset pending the disposal of the condonation application PNP 4 WP6615-16.8.sxw before the Debts Recovery Tribunal. Accordingly by consent the following order is passed - i) Counsel appearing on behalf of the Petitioners states that the Petitioners do not press the appeal that has been filed before the Debts Recovery Appellate Tribunal against the order of the Tribunal dated 1 October 2010; ii) The Petitioners agree and undertake to deposit an amount of Rs.5 lacs with the Respondent bank on or before 20 August 2011 and a further sum of Rs.5 lacs on or before 20 September 2011; iii) On behalf of the Respondent Bank it has been stated that in the event the Petitioners comply with the aforesaid statement recorded in clause (ii) herein above, the bank shall not take forcible possession of the secured asset pending the disposal of the application (M.A. 153/2010) for condonation of delay before the Tribunal; iv) The bank would, however, be at liberty to take symbolic possession of the secured asset; v) In the event the Petitioners commit any default in the payment of the sum as agreed to be deposited or any part thereof, the bank would be at liberty to take forcible possession and to execute the order under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in accordance with law. PNP 5 WP6615-16.8.sxw The Petition is accordingly disposed of since no other point has been pressed on either side. On the request of Counsel appearing on behalf of the Petitioners it is recorded that statements made before the Court are on the instructions of the Petitioners. Similarly, on behalf of the Respondents, learned counsel requests the Court to record that the statements made on behalf of the bank have been made on the instructions of Mr. D.Y. Wani, Senior Manager of the Respondent bank. (Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.)