Manoj Mahendra Somani vs Piramal Capital And Housing Finance Ltd

Nirzar S. Desai, J

I have heard Mr. R. S. Sanjanwala, learned Senior Counsel assisted by Mr. Arpit Singhvi and Mr. Sarvaswa R. Chhajer for the petitioners.

At the outset, it was pointed out by learned Senior Counsel Mr. Sanjanwala that the petitioner has already preferred an application before the DRT under Section 17 of the SARFAESI Act being S.A. No.384 of 2023 and DRT has already heard the same, but order is not yet available. He, therefore, states that in view of the fact that the possession of the property in question which is mortgaged with the respondent No.1 - Financial institution is scheduled to be taken over on 15.10.2023, which is the scheduled date, the petitioner would be rendered remediless as it would not enable the petitioner to avail the statutory remedy of appeal under Section 18 of the Act against an order passed by DRT in S.A. No.384 of 2023 in case if the order is against the petitioner and no relief is granted.

Learned advocate Mr. Lalit Patel appearing for respondent No.1 - Financial Institution has instructions to appear before this Court. He opposed the submission made by learned Senior Counsel Mr. Sanjanwala and submitted that in case if the DRT passes any order refusing to grant any relief to the petitioner, the Financial Institution would be at liberty to act in accordance with the provisions of Act and, therefore, this Court may not interfere with the proceedings wherein DRT has already heard the matter. He also draws attention of this Court that this petition under Article 226 of the Constitution of India is not maintainable as the writ is sought against the private entity and not the State. By making the above submission, he prayed that the petition be dismissed without entertaining the same.

I have heard learned advocates for the respective parties and perused the record. The fact remains that though I am of the view that as the petition is preferred against the private entity which cannot be termed as State within the meaning of Article 12 of the Constitution of India, and considering the fact that S.A. No.384 of 2023 is already heard by DRT, Ahmedabad wherein order is still not available. Therefore, as far as apprehension of learned Senior Counsel Mr. Sanjanwala that in the event an order refusing to grant relief in favour of the petitioner is passed by DRT, in that case, today being 13.10.2023 and the date on which the respondent No.1 is likely to take over the possession of the property in question would be 15.10.2023, the petitioner would be rendered remediless. However, Section 18 of the SARFAESI Act provides for appeal against the order passed by DRT under Section 17 and, therefore, though the petitioner can avail that remedy of preferring an appeal, subject to all the rights and contentions of both the parties the fact remains that if during the appeal period, possession of the property is taken over by the respondent No.2, the statutory remedy available to the petitioner would remain on paper only.

In view of that, I direct the respondents that in case if the DRT passes any adverse order to the petitioners, the respondent Nos.1 & 2 shall not take over the possession of the property of the petitioner mortgaged with the respondent No.1 for a period of four weeks from the date of the order so as to enable the petitioner to avail alternative efficacious remedy available to the petitioner.

With the aforesaid observation and direction, present petition stands disposed of. It is made clear that this Court has not examined the merits of the case and the rights and contentions of all the sides are kept open.