Presented on: 27.07.2019 Registered on: 29.07.2019 Decided on: 30.07.2019 Duration: Y M D
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IN THE DEBTS RECOVERY TRIBUNAL AT PUNE
SECURITIZATION APPLICATION No.195/2019 TOTAL CLAIM AMOUNT - 9,95,00,000/-
M/s. Sanmati Pressing Pvt. Ltd., through it's Directors -
(1) Mr. Laxman Devrao Gange,
(2) Mrs. Nakshatra Laxman Gange, Office Address - Sector no.10, Plot no.41, PCNTDA, Bhosari, Pune -
411 026
And
Flat no.19, Building no.18, Silver Beach, Bhamburda, Shivajinagar, Pune - 411 016. ... Applicant Versus
1. The Authorised Officer, Shree Janaseva Sahakari Bank Ltd., Pune Branch having head office at - 656, Shukrawar Peth, Shivaji Road, Pune - 411 002.
2. The Collector, Pune District Court, Compound, Pune
3. The Nivasi Nayab Tahasildar &
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Karyakari Dhandadhaikari, Khed. At Post - Khed, Tal.- Khed, District - Pune.
… Defendants
APPEARANCES
For the Applicant Mr. R U Waghmare - Advocate For Defendant no.1 Mrs. Madhuri R Vaidya - Advocate None for Defendant nos.2 and 3
Shri Deepak M Thakkar Presiding Officer
JUDGMENT PRONOUNCED ON : 3 0thJ u l y , 2 0 1 9
JUDGMENT
1. The applicant is the borrower who has filed the securitisation application under sub-section (1) of section 17 of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ("the 2002 Act" for short) challenging the action and measures of defendant no.1 taking physical possession pursuant to the order dated 19thJanuary, 2018.
2. The applicant obtained loan in the sum of the Rs.15.62 crores from defendant no.1 and secured the loan by mortgaging the property i.e. all that piece and parcel of agricultural land admeasuring 00-70 H-R alongwith
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factory shed and guest house on the said land situate at Gat no.271 (Old Gat no.2132), Nanekarwadi, Taluka- Khed, District Pune. According to the applicant it has paid the sum of Rs.3.67crores.
3. Being dissatisfied with the order dated 19thJanuary, 2018 and notice dated 6thJuly, 2019 issued by defendant no.3 the applicant has filed the present application. According to the applicant defendant no.1 has not published the notice as required under the said Act.
4. Further according to the applicant, defendant no.1 is taking the symbolic possession on 30thJuly, 2019. The applicant is ready and willing to pay 10% of the total profit made in the business against the outstanding loan of defendant no.1.
5. The securitisation application is opposed by Mrs. Vaidya stating that prayer (a) is for revision is beyond the jurisdiction of this Tribunal in application under sub- section (1) of section 17 of the 2002 Act. Mrs. Vaidya further submitted that the applicant has failed to challenge the order dated 19thJanuary, 2018. Even otherwise, the challenge to the order dated 19thJanuary,
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2018 is beyond the period of limitation. Mrs. Vaidya further submitted the applicant has failed to produce the Resolution authorising the secured creditors to file the securitisation application. Defendant Bank is lead bank of which Jalgaon Janata Sahakari Bank Ltd and Vardha Nagari Sahakari Bank Ltd are consortium members. The total liability of the consortium is more than Rs.20 crores (approximately). The amount of Rs.20 crores is outstanding even after giving credit of Rs.3.67 crores as set out in paragraph no.5.2 of the securitisation application.
6. Mrs. Vaidya further submitted that in the absence of the challenge to the order under section 14 of the 2002 Act, the application is not maintainable.
7. I have heard the learned counsel for the applicant and defendant no.1
8. It is not in dispute that the order under section 14 of the 2002 Act was passed by the Learned District Magistrate on 19thJanuary, 2018. Paragraph no.4 of the securitisation application refers to the order. However, the applicant has not explained the delay in filing the securitisation
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application. Be that as it may, even today no application seeking to condone the delay for filing the securitisation application is filed. In the absence of any prayer or in the absence of any application, this Tribunal does not have inherent powers to condone the delay. Therefore, the securitisation application is liable to be dismissed on the ground of limitation.
9. Secondly, the applicant has confused it between the symbolic possession and physical possession. On the one hand the applicant is aggrieved by the order under section 14 of the 2002 Act and on the other hand the applicant pleads with regard to the symbolic possession. The application is filed with the half-baked knowledge. Mrs. Vaidya submitted that the applicant was aware of the order under section 14 because possession of the residential property was already taken long back. Mrs. Vaidya submitted that the physical possession of the residential property was released upon certain payment made by the applicant . Therefore, the applicant has not made any cause of action for grant of the relief.
10. The applicant had not produced any Resolution
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authorising the secured creditors to file the securitisation application. The law laid down in the case of M/s. Hari Shree Enterprises v/s Vikas Housing Ltd. and others reported in (2009) 4 ALL MR 247 is very clear in this regard. The power to sue requires application of mind in every cause of action that is arisen. Initiating legal action by the legal entity is a separate act unconnected with day to day activities of the company. Therefore, the company is to act only through it's meetings by passing resolution by the Board of Directors authorising Directors or Managing Directors to initiate or not to initiate the legal proceedings.
11. After examining the fact and circumstances of the case and the matter placed on record by the applicant, I have come to the conclusion that the measures referred to in sub-section (4) of section 13 taken by the secured creditor are in accordance with the provisions of the 2002 Act and the rules made thereunder.
12. In view of the above, I pass the following order:
ORDER
(A) Securitisation Application No.195/2019 is hereby
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dismissed.
(B) Parties to bear their respective costs. Sd/-
(Deepak M Thakkar) Presiding Officer Debts Recovery Tribunal, Pune
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