ADITYA BIRLA FINANCE LIMITED Vs. CARNET ELIAS FERNANDES VEMALAYAM AND OTHERS
HIGH COURT OF MADHYA PRADESH
Aditya Birla Finance Limited
Carnet Elias Fernandes Vemalayam And Others
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Hemant Gupta, J. -
(1.) The challenge in the present writ appeal is to an order passed by the learned Single Bench on 11.04.2018 in Writ Petition No.8077/2017 (Shri Carnet Elias Fernandes Vemalayam and another vs. District Magistrate and others) whereby an order passed by the District Magistrate, Bhopal on 28.04.2017 under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "the Act") has been set aside.
(2.) The sole reason for setting aside the order of the District Magistrate is that the Bombay High Court in Arbitration Petition No.1118/2015 (Aditya Birla Finance Limited vs. Mr. Carnet Elias Fernandes and another) has passed an order on 04.09.2015 to hand over the physical possession of the property to the Receiver in proceedings initiated by the appellant under Section 9 of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act"). It was found that since symbolic possession of the property is with the Receiver, therefore, an order passed by the District Magistrate cannot override the order dated 04.09.2015 passed by the Bombay High Court. The relevant extract from the order dated 11.04.2018 (Annexure A-1) passed by the learned Single Bench, reads, thus:
"19. So far as ground No.3 and 4 regarding physical possession of the properties is concerned, the Bombay High Court while passing the interim order has directed to hand over the physical possession of the properties to the receiver. Thus, as per the interim order passed by the Bombay High Court, symbolic possession of the properties has been given to the receiver and, thus, as the symbolic possession of the properties is with the receiver, the order passed by respondent No.3 ceased to have any effect and cannot override the order dated 04/09/2015 passed by the Bombay High Court. The order passed by the Bombay High Court is certainly having a binding effect and cannot override and ceased by taking shelter of any other law, be it SARFAESI Act. Respondent No.3 has concealed the fact about the order passed by the Bombay High Court on 04/09/2015 and that the properties as of now are not with the petitioners and it is with the receiver of the Bombay High Court. As these facts were not brought to the notice of respondent No.1, therefore, the said order deserves to be quashed."
(3.) Though the learned Single Bench has held that there is no alternative remedy against an order passed by the District Magistrate under Section 14 of the Act, but, a Division Bench of this Court in W.P. No.19028/2017 (Sunil Garg vs. Bank of Baroda and others) decided on 16.04.2018 has held that remedy of an aggrieved person against an order passed by the District Magistrate is before the Debts Recovery Tribunal under Section 17 of the Act. Therefore, such finding of the learned Single Bench cannot be sustained.;
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