TITLE: Biren Chandrakant Shah through LHS Dimple Biren Shah Versus Authorised Officer, Punjab National Bank
Decided On-: August 17, 2023
14199 of 2023
CORAM: Hon’ble Justice Mr. Nikhil kariel
INTRODUCTION-
Through this petition, the petitioner is contesting the DRT-II, Ahmedabad order dated 10.08.2023, in particular, the decision to deny the application for preponement that the present petitioner had submitted.
FACTS OF THE CASE
Petitioner had objected to the Section-13 (2) notice and other subsequent actions taken in accordance with the SARFEASI Act. The learned attorney would argue that the matter is scheduled to be heard by the learned Tribunal on August 4, 2023, despite the fact that The learned attorney would argue that although initially the Court Commissioner appointed by the Chief Judicial Magistrate to assist taking over the possession of the property under Section-14 of the SARFEASI Act had given notice to the petitioner informing them that the possession would be taken over it appears that because police protection was unable to be obtained, the Court Commissioner did not attempt to take over the property any further. An experienced attorney would argue that the petitioner informing them of the court’s attempt. a commissioner is appointed to assume control of the property
As an objection to that, eminent attorney Mr. Sevak would argue that since the Court Commissioner provided adequate notice, neither the respondent bank nor the Court Commissioner is at fault.
COURT ANALYSIS AND DECISION
The impugned order, and taking into account the arguments put forth by the experienced attorneys, it appears that the Tribunal was troubled by the petitioner’s – original applicant – decision to move the learned Tribunal at the last minute. In contrast, it would appear that the said factor weighed heavily in favour of the learned Tribunal’s decision to not postpone the hearing of Securitization Appl. The learned Tribunal concerned is authorised by Section-17(3) of the SARFEASI Act to secure the assets in the event that the petitioner prevails at the final hearing of the Securitization Application, which was the other factor taken into account.
The factor of delay that the learned Tribunal considered may not be relevant to the current issue and may not be able to be corrected. Regarding the Securitization Application, it appears that the Respondent issued a Section 13(2) notice on August 4, 2023, followed by a Notice of Taking Symbolic Possession on February 13, 2023. The Respondent-Bank then went to the Chief Judicial Magistrate by submitting a Section 14 application on June 28, 2023, and the Chief Judicial Magistrate, Vadodara, issued an order thereon granting the Securitization Application.
While it would appear, prima facie, to the Court that the petitioner could have challenged the respondent bank’s action in refusing to take symbolic possession, specifically by issuing a notice of symbolic possession dated 13.02.2023, the fact that the petitioner challenged the notice for taking physical possession of the property on 06.08.2023, could not be characterised as a belated action.
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Written by- Steffi Desousa
