Parvati Sudam Pingale & Ors vs Bank of Baroda & Ors

Ashok Menon, Chairperson

This is an Appeal filed by third parties who challenge the Sarfaesi measures pertaining to the secured assets which are alleged to be their possession as tenants. The Ld. Presiding Office has in their I.A. No. 605/2022, an application for stalling the Sarfaesi measures initiated by the Respondent Bank refused to grant any interim stay and hence the Appellants have come up in Appeal challenging the impugned order dated 10.05.2022 of the Ld. Presiding Officer, D.R.T. Nagpur.

The Ld. Counsel appearing for the Respondent Bank submits that I.A. No. 605/2022 was filed by Appellants to stay the act of taking over possession of the property based on a notice dated 29. 04.2022. Contentions were raised on the ground that the Tehsildar who was authorised by the District Magistrate to take possession under S. 14 of the SARFAESI Act, could not further delegate the act to his subordinate, Naib Tehsildar The Ld. Presiding Officer has expressed a view that the taking over possession by Naib Tehsildar is not defective. The Ld. Counsel for the Appellants and also Respondent No. 2 & 3 have relied upon a decision of Hon’ble High Court of Judicature at Bombay in Writ Petition No. 2876/2020 dated 14.02.2020 wherein it was held that a Tehsildar who has been delegated to take over possession cannot sub-delegate the taking over possession to his subordinate. The Appellants as well as Respondents No. 2 & 3 are anxious about the observation made in the impugned order regarding the adequacy of the notice wherein the Naib Tehsildar had intended to take possession. I consider that only a prima facie finding could have been made at the interlocutory stage. Moreover, the Ld. Counsel for the Appellants filed pursis stating that intended possession was not acted upon and therefore, under the circumstances, the interlocutory order made by the Ld. Presiding Office in I.A. No. 605/2022 has become infructuous for all practical purposes. Hence the Appeal also would be rendered infructuous. But the anxiety of the Appellants and Respondents No. 2 & 3 is that the adverse observations made by the Ld. Presiding Officer in the impugned order upholding the sub-delegation to the Naib Tehsildar, would be working against them in their defence in the S.A, as and when it is taken up for final hearing.

I make it clear that the observation made regarding the sufficiency of the action taken by the Naib Tehsildar in the impugned order by the Ld. Presiding Office is only a prima facie finding, and shall not influence the ultimate finding of the Ld. Presiding Officer while considering the contention of the parties in the S.A. The parties are at liberty to raise their contention including the contention regarding the inadequacy of the notice delegating the taking over possession of the secured assets by the Naib Tehsildar.

With these observations, the Appeal is disposed of with the direction that the S.A. shall be disposed of as expeditiously as possible.