Avinash Shingnapurkar Versus Union of India & ors

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

 

 

 

 

 

 

ORIGINAL SUIT/ APPEAL/APPLICATION UNDER Section 17 OF THE Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 READ WITH Sections 34, 35 AND 37 THEREOF AND SUB-Sections (6) TO (11) and (25) OF Section 19 OF THE Recovery of Debts and Bankruptcy Act,1993 PREFERRED BY THE Appellant/ Appellant THROUGH its COUNSELS MRS. ROHINI M. AMIN

 

 

Dated this _______  day of February 2018

 

 

 

 

 

 

 

 

 

MRS.ROHINI M.AMIN

Advocates for Appellants,

304, Hari Chambers, 3^rd Floor,

SBS Marg, Near Old Customs House

Fort, MUMBAI- 400 023

(Mobile: 98205 35428)

 

 

 

 

 

 

 

 

 

 

 

Presented on:  26.02.2018

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

_________________________________________________________

 

 

For use in Tribunal’s Office

 

 

1. Date of filing                       :26^th Day of February, 2018

or

1. Date of receipt of by post    :
2. Registration   No                 :

 

 

 

 

 

 

Signature

Registrar

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

SYNOPSIS

The Plaintiff/Applicant is a citizen of India and a resident of Mumbai. He is constrained to invoke the jurisdiction of the Court since he sought to be dispossessed of his very residential home in the purported execution of an order at the hands of the learned CMM, Mumbai, under S.14 of the SARFAESI Act.

It is travesty of justice that while Rs 7,63,000 crores as on 31.12.2017 is classified as NPA of 500 big companies including the Anil Ambani, Bhushan, Rula’s and the scamsters like Vijay Mallya , Nirav Modi, Vikram Kothari, Mehul Chokshi et al allowed to even leave the country scot-free, small traders and entrepreneurs who could not repay the loans availed of by them not because of their fault but of the fault of the bank are dispossessed of their very home that too without observing the first principle of Natural Justice.

 

 

 

Advocate for the Plaintiff/Applicant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

AVINASH ANAND SHINGNAPURKAR

401, Sunview Co-op Housing Society Ltd.,

Y-A-C Nagar, Kondivita Road,

Marol, Andheri (East),

Mumbai 400059                                                            …Plaintiff/Applicant

 

Versus

1. The Indian Bank

represented by its CMD,

Chennai.

 

1. The Authorised officer,

Indian Bank,

Chandavarkar Road,

Borivali (W), Mumbai

 

1. The Branch Manager,

Indian Bank,

Chandavarkar Road,

Borivali (W), Mumbai

 

1. Union of india

Represented by its secretary

In Ministry of Finance

Government of India,

Jeevan Dweep Buildings

Parliament Street, New Delhi.

 

1. The Governor,

     Reserve Bank of India,

      Central Office Building,

Shahid Bhagat Singh Road,

Mumbai-400 001

 

 

1. The Inspector of Police,

MIDC, Police Station

Andheri (E),Mumbai

 

1. Mr Vinayak Kamble

Advocate Commissioner

Appointed by Addl. CMM Mumbai,

Having address at A/6 Apartment,

Behind Kalika Mata Mandir,

Badlapur (E) Dist. Thane

 

1. The Chief Metropolitan Magistrate,

At Esplanade Mumbai

Fort, Mumbai- 400 001

 

9. 3^rd Additional Chief Metropolitan

Magistrate At Esplanade, Mumbai

Fort, Mumbai-400 001

 

1. The Bar Council of Maharashtra & Goa

Mumbai.

 

11. Union of India

Represented by its Secretary,

Ministry of Finance, New Delhi.

 

12. The State of Maharashtra,

represented by its Chief Secretary,

Mantralaya, Mumbai-400 032.

 

13. The Inspector in Charge

Sakinaka Police Station

Andheri (E), Mumbai

 

14. The Union of India, through

Ministry of Micro, Small and

Medium Enterprises

Udyog Bhawan,

Rafi Marg, New Delhi, Delhi 110001                     …Respondents

 

 

ORIGINAL SUIT/ APPEAL/APPLICATION UNDER Section 17 OF THE Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 READ WITH Sections 34, 35 AND 37 THEREOF AND SUB-Sections (6) TO (11) and (25) OF Section 19 OF THE Recovery of Debts and Bankruptcy Act,1993 PREFERRED BY THE Appellant/ Appellant THROUGH it’s  COUNSELS MRS. ROHINI M. AMIN.

 

1. PARTICULARS OF THE APPELLANT:

 

1. i)         Name of the Appellant/plaintiff:

Same as given in the cause title above.

 

1. ii) Address of the Registered Office of the Appellant/plaintiff:

AVINASH ANAND SHINGNAPURKAR

401, Sunview Co-op Housing Society Ltd.,

Y-A-C Nagar, Kondivita Road,

Marol, Andheri (East),

Mumbai 400059

.

iii)       Address for service of notices:

Same as given in the cause title above and, in case notice could not be served at that address, on their counsel Mrs. Rohini M. Amin at 304, Hari Chambers, 3rd Floor, S.B.S. Road, Opposite to Cheetah Gate, Fort, Mumbai-400 023., (Mobile: 09920477447).

 

2. PARTICULARS OF Respondents:
3. i)         Names of the Respondents:

Same as given in the cause title above.

1. ii) Office address of the Respondents:

Same as given in the cause title above or on their Counsel as and when engaged.

iii)       Address for service of all notices:

 

Same as given in the cause title above or on their Counsel as and when engaged.

The present application is not merely an appeal filed in challenge of the adjudication / action at the hands of Respondent No.2 & 3, the Authorized Officer, but an original suit against the Respondents seeking damages and equitable remedies like mandatory / prohibitory injunction, specific performances, set-off, etc. Therefore the instant suit will be bad for non-joinder of necessary and proper parties if the authorized officer alone is made a defendant/respondent.

3. JURISDICTION OF THE TRIBUNAL:

Apart from the cause of action, the Respondents  also, resides/works for gain at Mumbai, within the territorial limits of this Hon’ble Tribunal at Mumbai.  It is a fundamental principle of law that the Appellant/plaintiff is the dominus litis and the choice of the forum is his prerogative. The fundamental principles on which jurisdiction is determined are lex causae – law of the cause, lex fori – law of the forum, lex situs – the legal system which applies in the place where the asset is situated and lex loci – the law of the place where the contract was made, which find statutory embodiment in the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act, for short) and the Recovery of Debts and Bankruptcy Act,1993 (RDB Act).  The very first prayer, which if allowed, rest of the reliefs stands automatically granted is primarily is sought against the RBI. Therefore, the Appellant declares that this Hon’ble Tribunal has jurisdiction to entertain and try the instant S.A./suit.

 

4. LIMITATION:

 

The instant proceeding is both an original suit at the hands of the Appellant/plaintiff as against the Respondent Bank for common law and equitable remedies, namely, for compensation, damages, injunction, prohibition, specific performance etc., and under Article 113 of the Limitation Act 1963, the limitation prescribed is three years and as the said course of action being a continued one, the law of limitation doesn’t apply at all. At any rate, even on a conservative angle,t he limitation in so far as the remedies of the appellant as aginst the respondent Bank could said to commence when the appellant/or his company’s account was classified as NPA and Banking facility were denied to him and also when the 13(2) notice was issued.  In the instant case, the cause of the action, which the Supreme Court has defined to be a “bundle of facts the Appellant/plaintiff needs to plead and prove if traversed to obtain the relief sought for, arose when an understanding was entered into between the Appellant/plaintiff and the Respondent Bank for extending credit facilities.  However, the Bank broke all its agreements, commitments and contracts and acted unbecoming of a banker in a most negative, nay, even malicious manner, particularly by reducing the credit limit and charging penal interest and other prohibitory charges when no interest could have been charged, when the account has been classified as NPA behind the Appellant’s back in gross breach of the guidelines of the Reserve Bank of India (RBI) in 2017.  The instant proceeding is an appeal against the proceeding at the hands of Respondent No.2 & 3  under section 13(4) of the SARFAESI Act,2002, which is a nullity.  The limitation will further arise on 11.12.2017, when the Ld. Additional CMM passed an order for the dispossession of the residential home of the appellant and that of the purported guarantors. Thereafter the Respondent No. ___ issued notice in purported exercise of the Order dated 11.12.2017 passed in CC No. 814 /SA of 2016, for seeking forcible possession of the residential premises of the Plaintiff/ Appellant.  Further the reliefs sought, which are in the realm of declaratory remedies, to which the concept of limitation is alien as well. The present S.A., therefore, both as a suit and as an appeal, is within the period of limitation.

5. FACTS LEADING TO THE APPEAL/APPLICATION:

 

1. The Plaintiff/Applicant is a citizen of India and a resident of Mumbai. He is constrained to invoke the jurisdiction of the Court since he sought to be dispossessed of his very residential home in the purported execution of an order at the hands of the learned CMM, Mumbai, under S.14 of the SARFAESI Act.

 

2. The legal status of the respondents are manifest from the very cause title itself. The reasons for which they are arrayed as respondents is dealt with in detail infra in the course of the narration of the statement of facts.

 

3. It is travesty of justice that while Rs 7,63,000 crores as on 31.12.2017 is classified as NPA of 500 big companies including the Anil Ambani, Bhushan, Rula’s and the scamsters like Vijay Mallya , Nirav Modi, Vikram Kothari, Mehul Chokshi et al allowed to even leave the country scot-free, small traders and entrepreneurs who could not repay the loans availed of by them not because of their fault but of the fault of the bank are dispossessed of their very home that too without observing the first principle of Natural Justice.

 

4. The Plaintiff/Applicant is the proprietor of a proprietary firm namely M/s. Creative Dope. In the year 2016, Plaintiff/Applicant purchased a Chinese make digital printing machine for a cost of 32,02,500. For the purpose of buying the said machine and to operate it, the Plaintiff/Applicant required funds to the minimum of Rs 1.5 Cr. the cost of machine was not the only expenditure to be incurred. He needed a place to operate from, to install the machine so too need to incur other expenses. His venture was small, very small even in terms of the concept of MSME. He registered it as a MSME unit. Against the requirement of Rs. 1.5 CR, what was sanctioned was only Rs. 30 lacs as time loan and Rs. 25 Lacs as working capital. Since the bank, though promised to sanction Rs. 1.5 Cr. which was the bare minimum of what was required to start and profitably run the business, what was sanctioned was only Rs 55 lacs. Since the bank failed to abide by the terms of the contract which was entered into with the Plaintiff/Applicant and failed in releasing not even 50%  of what it had committed, so too what was required, the Plaintiff/Applicant’s business failed right from the very beginning. He sought further funds supported by relevant data and materials, the Respondent bank did not pay any heed to his request, he being poor. The Plaintiff/Applicant’s request for restructuring the business also fell on the deaf ears. Nobody was willing even to give him an audience.

 

5. The Plaintiff/Applicant is a sole bread winner of his family. He has got a daughter and a son aged 19 & 16 both studying. His old parents, dependants on him, are staying in a one BHK house of just 471 sq.ft at Andheri East. Since the bank did not honour its commitments, nay, acted in gross breach thereof, not merely negligent or customer friendly but hostile and vindictive. He had to wind up his pending business in just less than one and half year since its inception. The Plaintiff/Applicant could only get Rs. 7 lacs, literal scrap value as against the investment in the machine of Rs 32 Lacs.

 

6. As aforesaid, he ran his printing press business in a rented premises. Substantial investment was required to be made to convert the premises which was taken on rent usable as his small unit. All that investment, nearly about Rs 10 Lacs, became a dead investment, nay, a total waste. He was paying a rent of Rs 65,000 per month and a few months’ rent as security deposit. The money which was paid in advance remained to be returned to him because the banks did not permit him to dispose of the printing machine. Because of the bank’s hostile attitude, he had to pay the rent at the rate of Rs 65,000/- per month even after the unit was closed for lack of capital, so too, working capital.

 

7. The Plaintiff/Applicant, being liquidated at the hands of the bank as aforesaid was left with no option than to find a job as a worker in some other printing unit. With the wages he is earning as a labourer it is difficult to make both ends meet of himself and his family.

 

8. The respondent bank after committing gross breach of contract being guilty of capable negligence, malicious and hostile action as aforesaid classified the account of the Plaintiff/Applicant as NPA, that too behind his back. His account was not liable to be classified as NPA for he was entitled to the protection of MSME Act. From time to time since 2002 the Reserve Bank of India issued a number of guidelines, instructions, directives to Banks in the matters relating to lending to MSME sector. To enable the Banks to have current instructions at one place a Master Circular RPCD.MSME & NFS.BC.No.5/06.02.31/2013-14 dt.01.07.2013, consolidating instructions issued upto 03.06.2013 was issued. Many a time, Bank Managers do not even bother to respond to their loan queries. They often pretend ignorance about the government loan schemes designed for MSMEs. Such complaints are a dime a dozen. To bridge this mistrust the MSME lending system the RBI and The Government of India resolved to be revamped. Transparency in lending norms, clear-cut methods to evaluate and monitor MSMEs’ financial condition, guidance to them in loan application, care to nurse them in their sickness and a resolve to never let them die are some steps taken up urgently by the Ministry of Micro Small & Medium Enterprises, Government of India and towards this end they issued a Notification .S.O. 1432(E) dated 29.05.2015. This notification lays down the frame work for Revival and Rehabilitation of Micro, Small and Medium Enterprises. The Plaintiff/Applicant shall rely on the Notification .S.O. 1432(E)  dated 29.05.2015 when produced.

 

9. As aforesaid the Respondent Bank classified the account of the Plaintiff/Applicant as NPA that too behind his back. The Guidelines issued by the Reserve Bank of India (RBI) under the heading “Master Circular – Prudential norms on Income Recognition, Asset Classification and Provisioning pertaining to Advances” does not expressly require an opportunity to the borrower/guarantor to be heard or any kind of inquiry to be conducted before such classification is made. A copy of the said guidelines, RBI Guidelines  RBI/2013-14/62 DBOD.No.BP.BC.1/21.04.048/2013-14 dated July 1, 2013, which constitutes the gospel of the SARFAESI Act,2002, is produced and marked for reference as EXHIBIT-“A”.  The said guideline is unconstitutional and void inasmuch as it does not provide for any opportunity to the borrower/party aggrieved to be heard before his or her account is classified as NPA.

 

10. Yet, another RBI Circular bearing No. RBI/2014-15/73 DBR.No.CID.BC.57/20.16.003/2014-15 dated 01.07.2014 permits Banks to assume to themselves legislative powers and to issue circulars authorising the Branch Manager/Authorized Officer under the SARFAESI Act,2002 to make publications in newspapers declaring a borrower as a wilful defaulter and once such declaration is made the bank could publish the photographs. A copy of the said RBI Circular bearing No. RBI/2014-15/73 DBR.No.CID.BC.57/20.16.003/2014-15 dated 01.07.2014 is produced and marked for reference as EXHIBIT -“B”.  The purported purpose is a laudable one!  The purpose said to be is to “name and shame” and by defaming a purported borrower compel him to meet the demand, even an illegal one, of the Bank.  It appears that Banks have taken the cue from political philosophy of “name and shame” of a public functionary engaged in corruption.

 

11. Another guideline of the RBI bearing No. RBI/2012-13/514 DBOD.BP.BC.No.99/ 21.04.132/2012-13 May 30, 2013 allows Review of Prudential Guidelines on Restructuring of Advances by Banks and Financial Institutions, copy of which is produced hereby and marked as EXHIBIT-“C”. Since the said guidelines are mere administrative orders or circulars issued by the Chief General Manager, Department of Banking Operations and Development, Reserve Bank of India, and not by the Reserve Bank of India as a statutory body exercising the delegated statutory powers vested in it by virtue of the provisions of the Banking Regulation Act, 1949 and/or the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002. Inasmuch as the said guidelines constitutes to be an enactment of law as if the Reserve Bank of India is the Parliament competent to create rights and liabilities on subjects in exercise of its powers under Section 35(a) of the Banking Regulation Act, 1949 and Section 57 of the Reserve Bank of Act, 1934, which only empower it to issue such circulars, guidelines and regulations which are purely procedural in nature and in no manner imposing liabilities and obligations on citizens who do not come under its administrative control, the said instruments are void ab initio.

 

12. The respondent bank, which is guilty of gross breach of contract and culpable negligence as aforesaid and thus is not invested of no right as against the Plaintiff/Applicant to invoke Section 13(2) of the SARFAESI Act, in gross violation of the law. A copy of the Notice is annexed hereto as Exhibit-“D”. Plaintiff/Applicant replied to the same explaining in great detail why the bank is invested of no right to issue such a notice, a copy of the reply is produced as Exhibit-“E”. The bank did not reply to the said objections of the Plaintiff/Applicant, though it was duty bound to do so. It instead instituted application u/s 14 of the SARFAESI Act to secure an order to forcefully dispossess the Plaintiff/Applicant of his home. The Ld. 3^rd Additional Chief Metropolitan Magistrate allowed the said application of the Respondent Bank. It appointed the Advocate Commissioner to execute its order. The Advocate commissioner has issued a notice informing the Plaintiff/Applicant that he will be dispossessed of his home forcefully on 27^th February, 2018. A copy of the said notice is produced as Exhibit-“F”. The Plaintiff/Applicant shall rely upon the Order passed by the Ld. CMM under Section 14 of the SARFAESI Act.
13. The doctrine of audi alteram partem – hear the other side – is the very foundation on which the common law is built, nay, it was the very foundation of the classical Roman Law based on which the common law is founded. Audi alteram partem is the foundation of the very concept of natural law which is considered to be sacrosanct by eminent men like Justin, St. Augustine, Thomas Aquinas et al.  What were once considered to be natural law are what fundamental rights as adumbrated in our Constitution.  With the judgment of the House of Lords in Ridge v. Baldwin, 64 Appeal Cases 40 and the Constitution Bench judgments of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, Maneka Gandhi v. Union of India, AIR 1978 SC 597, Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, Olga Tellis v.  Municipal Corporation of Bombay, AIR 1986 SC 180, etc., natural justice has to be observed, no matter the function discharged is administrative or judicial and where the statute is silent about that requirement, such obligation has to be read into the statute.

 

14. The Ld. 3^rd Additional CMM allowed the application instituted by the Respondent under section 14 of the SARFAESI Act, without issuing any notice to the Plaintiff/Applicant, entirely behind the back of the Plaintiff/Applicant. The Ld. CMM is incompetent to pass an order without notice to the parties affected. Hence the proceedings instituted under the Section 14 of the SARFAESI Act so too the Order dated 11.12.2018, the Writ of Commission dated 22.01.2018 and Warrant of possession dated 07.02.2018 is void ab initio.
15. The appointment of advocate commissioner by the Ld. CMM under section 14 of the SARFAESI Act, 2002 is wholly unfounded, in violation of the express provisions of the Act and hence is non est in the eyes of law. Under the said provision and the scheme of the SARFAESI Act, 2002, only the officer subordinate to the CMM can be appointed for the enforcement of order and the appointment of Respondent No 8 as advocate commissioner is wholly unfounded, beyond the jurisdiction invested with the Ld.CMM. The doctrine expressio unius est exclusio alterius – if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner – squarely applies.
16. Further, It is a fundamental principle of jurisprudence that judicial function is sovereign, in a monarchy exercisable by the monarch, and Judges to whom such function is delegated and who are empowered to act independently and impartially and be under none. In a constitutional democracy, judicial power is vested in Courts and Tribunals established by an Act of Parliament.  In a democracy, unlike a monarchy, people are the sovereign and the Parliament as a delegatee of the people alone is competent to enact laws, including laws under which judicial powers could be vested in a duly constituted Court or Tribunal.  Judicial power, like legislative power, is considered to be an inalienable sovereign function of the State, one which is not delegatable.  The only permissible delegation is the Parliament as a delegatee of the people vesting in ordinary Courts or Tribunals constituted by an Act of Parliament/ competent legislature.  Here, under Section 14 of the SARFAESI Act, judicial power has been vested on a Chief Metropolitan Magistrate/District magistrate.  Therefore, the power vested on the secured creditor could only be exercised by the Ld. Chief Metropolitan Magistrate himself and the appointment of advocate commissioner is against the statutory provisions and against the law of equity as well. The sovereign functions of the state cannot be further delegated to an advocate Commissioner, the Respondent No. 8,  herein,  whatsoever be his position in the hierarchy.  If the power vested in the Chief Metropolitan magistrate and required to be exercised by himself is allowed to be exercised by an Advocate Commissioner, whatsoever, that constitutes an impermissible delegation of judicial function.  It is well settled in law that judicial function cannot be delegated, delegate potestas non potestdelegari – no delegated powers can be further delegated. Alternatively, it can be stated delegatus non potestdelegare, ‘one to whom power is delegated cannot himself further delegate that power’.
17. It is only profitable to extract section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 here for convenience:

“14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset

  (1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him– 

(a)  take possession of such asset and documents relating thereto; and

(b)  forward such assets and documents to the secured creditor.

(2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief  Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. 

(3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority.”

 

18. The appointment of advocate commissioner by the Ld.CMM / 3^rd Additional CMM under section 14 of the SARFAESI Act,2002 is wholly unfounded, in violation of the express provisions of the Act and hence is non est in the eyes of law. Under the said provision and the scheme of the SARFAESI Act,2002 , only the officer subordinate to the CMM can be appointed for the enforcement of order and the appointment of Respondent No 8, as advocate commissioner is wholly unfounded, beyond the jurisdiction invested with the Ld.CMM. The doctrine expressio unius est exclusio alterius – if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner – squarely applies.
19. Hence under the above said principles, writ of commission in Case No. 801/SA/2016 by the Ld.Addlt. CMM, Esplanade by which the advocate commissioner was appointed, is also in violation of the express statutory provisions, wherein section 14 of the SARFAESI Act,2002 do not authorize such appointment, where, the statute clearly lays down that the subordinate officer only can be appointed for the enforcement of SARFAESI Act,2002 Act and hence appointment of Respondent No.8 herein is contrary to law, and hence is liable to be set aside under the declaration that the appointment is non est.
20. The law of equity further states that ‘expressio unius est exclusio alterius’ or to say that if a statute provides that a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and the Respondent No. 10 herein, the Ld. Additional Chief Metropolitan Magistrate, Esplanade  found out and created his own alternative ways when the legal provision expressly provides the way in which the actions has to be made.  Hence the same illegal proceeding is liable to be challenged and declared non est in the eyes of law. Such an illegal procedure can be challenged whenever and wherever is tried to be implemented and is void ab initio.  ‘Lex injustia non est lex’ or to say that the unjust law is not a law at all and least the administrative apathy.
21. The law of equity further declares that ‘magna negligentia culpa est; magna culpa dolus est’ or to say that gross negligence is a fault and gross fault is a fraud. Hence such a gross negligence in implementing the legal proceeding is gross fault and hence is a fraud in itself.  Hence it is a culpable negligence on the part of respondent No.10 herein to violate the rule of law in discharging his duties. The ‘crassa negligentia’ or the gross negligence implying malice is liable to be set aside and the rule of law may be established in conducting the affairs of implementing the legal provisions. The entire proceedings under section 14 of the SARFAESI Act, 2002,  by the respondents  herein is a non sequitur and hence is liable to be treated as non est in the eye of law. Whereas the respondent herein is under legal obligation to follow the act and the Rules in verbatim, the deviation in implementing the provisions are mala fide and hence amount to culpable negligence and amounts to fraud. Therefore, the entire proceedings under Section 14 of the SARFAESI Act,2002 are null and void, and in particular, the appointment of Adv. Vinayak Kamble, Respondent No.8,  herein as advocate commissioner.  Therefore, in the abovementioned circumstances, above it is incumbent upon this Hon’ble Court declare that the Respondent No. 8 to the Instant Writ Petition, namely, Adv. Vinayak Kamble, are/is usurper of a jurisdiction.
22. As aforesaid the Respondent Bank, after resorting to a make-believe inquiry under Section 13(2), as aforesaid, instituted an application under Section 14 of the SARFAESI Act before the learned Chief Metropolitan Magistrate at Esplanade to procure forcible dispossession of the Plaintiff/Applicant’s home,  which the Bank falsely claims to be a secured asset at its hands.  Delegata potestas non potest delegari – no delegated powers can be further delegated – is a fundamental principle of law in relation to exercise of judicial or statutory function.  Alternatively, it can be stated delegatus non potest delegare – one to whom power is delegated cannot himself further delegate that power.  The function under Section 14 of the SARFAESI Act is undoubtedly a judicial function; at any rate it is a statutory function.  Parliament is the delegatee of the people exercising the sovereign power of the people.  In other words, the Parliament is “we, the people” ourselves.  Under the SARFAESI Act, the Parliament has vested or delegated the judicial/statutory power in the CMM/CJM/District Magistrate under Section 14 of the SARFAESI Act.  The said power cannot be further delegated at all.  To elaborate a bit, even where the Parliament has expressly permitted delegation of such judicial or statutory power, the Supreme Court has, in Shri Ram Krishna Dalmia Shri Justice S. R. Tendolkar, AIR 1958 SC 538, held that such delegation is impermissible, holding that essential judicial or legislative power cannot be delegated. The application of the Respondent Bank under Section 14 of the SARFAESI Act was registered by the learned CMM as Case No. CC. NO. 801/SA/2016 and it was listed for hearing.  However, apparently in exercise of the purported power under Section 192 read with Section 12 of the Code of Criminal Procedure (the Code, for short), the learned CMM, by its order, chose to transfer the said application to Respondent No.10 i.e   the 3^rd Additional Chief Metropolitan.        Such a transfer is illegal and bad in law.
23. Therefore the Respondent Bank is liable to be restrained from proceeding any further in the purported exercise of Section 13 and 14 of the SARFAESI Act pending adjudication of the instant Writ Petition. The entire proceedings at the hands of the Respondent Bank under Section 13(4) and proceedings under section 14 of the SARAFESI Act i.e. the Application No. CC No. 801 /SA of 2016 which culminated in the order dated 11/12/2017 passed by the Ld. 3^rd Additional Chief Metropolitan Magistrate, Mumbai, are null and void being in violation of the principles of natural justice and express statutory provisions.
24. The Respondent Bank is liable to be restrained from proceeding any further in the purported exercise of Section 13 and 14 of the SARFAESI Act pending adjudication of the instant Writ Petition. The entire proceedings at the hands of the Respondent Bank under Section 13(4) and proceedings under section 14 of the SARAFESI Act i.e. the Application No. 801/SA/2016 which culminated in the order dated 11/12/2017 passed by the 3^rd Additional Chief Metropolitan Magistrate, Mumbai, are null and void being in violation of the principles of natural justice and express statutory provisions
25. Access to justice is considered to be the birthright of a subject in common law. The common law was the law of the dominion of India.  When India became independent she adopted the common law as the law of the land by virtue of Article 372(1) of the Constitution.  In common law, the civil court is invested of all the jurisdictions to embark upon any controversy under the sun and bind the parties to the lis by its judgment/decree, it being a court of record of plenary jurisdiction. It is a fundamental principle of constitutional Jurisprudence that the sovereign Judicial function of the state could only be exercised by courts established by the Sovereign, which could exercise its functions independently and impartially.  As the constitution, as it stood originally enacted did not contemplate creation of tribunals.  However during the emergency, Part 14 A was added to the constitution, thereby providing for administrative and other Tribunals and Articles 323 B for Tribunals for other matters.  Article 323 B(2) expressly provides for the nature of Tribunals and the subject matter for the adjudication of which tribunals in substitution of the civil court could be created.  It expressly provides for 8 categories of subjects namely:

1.Taxation 2.Foreign Exchange 3.Labour Disputes 4. Land Reforms 5. Urban land Ceilings 6.  Election to the Parliament and Legislatures 7. Essential commodities and 8.  Rent.

26. An express provision for the above 8 categories as found enumerated in subarticles A to H is to the exclusion of any other subject matter. Expressio Unios est exclusio alterius.  The Constitution 42^nd Amendment Act, however by virtue of Article 323 B(4) made the aforesaid principle beyond any kind of doubt or dispute, by providing that article 323 B shall have effect notwithstanding anything in other provisions of the constitution or any other law for the time being in force.  The dispute between banker and the constituent, nay lender and borrower nay, banking is not a subject expressly enumerated in Article 323 (B) of the constitution and therefore the DRTs created under the Recovery of Debts and Banking Regulation Act 1993 is unconstitutional.  This court being the civil court is invested with all the jurisdiction and power to declare so.  The common law is the law of the land in terms of Article 372(1) of the Constitution of India and all disputes of the civil nature could only be adjudicated by civil courts except for the Tribunals which could be created in terms of Article 323 (B) of the Constitution and the Company Law Tribunal, DRT, DRAT, Authorised Officer under the SARFAESI Act, none of them come within the Seven categories of Tribunal enumerated in the Sub Article (2) of Article 323(D) and therefore are Ultra Vires the Constitution, incompetently instituted   and non est in the eyes of law.  Further,   access to justice, namely where a person, be it an animate one or an inanimate, artificial legal entity is an inalienable fundamental right, nay, very birthright and howsoever laudable could be a legislative objective, the said right cannot be taken away, that all legislations by which Tribunals or Forums are created in substitution of the Civil Court is liable to be construed as one invested of the jurisdiction to embark upon an enquiry for which alone it was created in substitution of the Civil Court and it cannot be so construed, nay, such Forums and Tribunals are indeed incapable of discharging the functions of the Civil Court in substitution whereof they are created, the Civil Court jurisdiction is not barred, but retained.
27. While the Malyas and Nirav Modi’s are allowed to plunder the Public Sector Banks, namely, while they are granted Credit facilities worth thousand of crores without any collateral security, the small traders and small entrepreneurs are made to mortgage his very home or the gala or office to secure a small amount. While the big sharks- the Anil Ambani Group, Essar Steel, Bhushan Steel, Essar et al. default thousands of crores of Rupees, the Banks instead of taking recourse to drastic steps to recover the amounts due under the SARFAESI Act, extended them further credit facilities under the various debt restructuring or resolution schemes. The small fish is dispossessed of his very home, his office, his shop or factory under the draconian SARFAESI Act. This is unjust. However, it has not received the attention of the Government, though it ought to have long before. The small fish, the small trader, artisan, small scale industries where the loan is less than 5 crores has to be excluded from the purview of the SARFAESI Act. So too a simple residential unit, the very home of the small borrower has to be excluded from the provisions of the Act. What is done in the name of SARFAESI Act rendering a small entrepreneur or small trader homeless because he could not service the account for 3 months is unjust and inhuman. It is barbaric.
28. The SARFASI Act is toothless in so far as the big fish is concerned. The RBI has been issuing various schemes for one time settlement or for restructuring or restoration of the debts from time to time. But nothing is wrong if it is done where it is justified. However, where restructuring or restoration is justified in the case of a genuine business loss or failure due to reasons beyond the control and anticipation of the Promoter, the Banks often decline it. Because the securities are in far in excess of the amount due and therefore by invoking the SARFASI Act, the debt could be recovered without any difficulty. However, where the debt is not adequately covered by collateral securities, nay, where the value of the securities are for less than that of the amount due, the Banks won’t invoke the SARFAESI Act. Because in that case no window dressing is possible and the Banks will have to make the requisite precaution for bad and doubtful debts. Therefore it is not profitable to do so for the Bank ought to show the losses in its profit and loss account. Therefore, where the assets are grossly overvalued and the collateral are bogus, the banks often restructure the account and even pumping further funds and conceal the true state of affairs from the public at large. This menace has to be put to an end. The law will have to expressly state that no Bank can advance money unless the loans are adequately covered by collateral securities, where it is in excess of say 10 crores. The law shall also provide for mechanism to deal with an iron fist the grossly over valuation of the collateral securities. There ought to be a watch dog to oversee the functioning of the Chartered Accountants since the ICAI has failed to discharge its duty as a regulator of the Statutory Auditors. In the like manner, there ought to be an effective mechanism to regulate the functioning of the “approved valuers” so too of the Merchant Bankers who are marketing the projects among various banks and financial institutions at the behest of the promoter.
29. The law should while punishing the dishonest and fraudulent, it should not be tool of harassment of the innocent. The SARFAESI Act and even the Insolvency Code while protecting the dishonest and the fraudulent, offer no protection against the persecution of the innocent. The Banks today classify a borrower as wilful defaulter. It means, in so far as an honest entrepreneur is concerned, his Civil death. But to the crafty and dishonest it is of no consequence. There is no statutory law as of today in so far as the declaration of a defaulter as a willful defaulter is concerned. The Banks do so invoking certain circulars issued by the RBI. The system where the Banker himself is the Judge of his own cause, evinces no public confidence. It is in many ways scandalous considering the propensity of the corruption prevailing in the Banking Industry. The classification of a defaulter as wilful defaulter has to be regulated by law. The Parliament has to enact law in this regard which shall provide for a fair and just, so too expeditious, for classification of a borrower as a wilful defaulter with a provision for Appeal to correct “errors within jurisdiction”. That job cannot be entrusted to the DRT. Because the DRT’s have no expertise to do so. The question is, who could then do it. The primary adjudication could be entrusted to an independent body, consisting of experts in the realm of banking, finance, economy, law, auditing and industry. An appeal thereof should lie before the civil court as is the case with many other legislations.

 

30. In short the Banking scams which shocked the conscience of the nation as if a nuclear explosion, at not so infrequent intervals are required to be dealt with the seriousness and urgency the same calls for. Otherwise, the very future of the nation is at stake. The 85% of the wealth of the nation being accumulated in the hands of a few will lead to social unrest if not bloody revolution. The Banking system and our economy have to be protected from those who have plundered it. The tax payers money can no longer be allowed to be used to bail out the banks, because we have allowed the banks to be plundered. Remedial measures are a crying need of the hour.
31. As aforesaid, the Plaintiff/Applicant is under no obligation to pay any amount to the Respondent Bank in as much as the claim of set-off, counterclaim and damages sought for by the Plaintiff/Applicant. As against the claim of the Bank against the Plaintiff/Applicant, the Plaintiff/Applicant is entitled to an amount which is much more, towards set-off inasmuch as the money which the Respondent Export Credit Guarantee Corporation of India Ltd. has paid to the Respondent Banks in terms of the insurance policy taken by the Plaintiff/Applicant to cover the risk arising from the non-realization of the proceeds of the export is liable to be given set-off, which the Bank has failed to do.  Yet, the Respondent Bank  has obtained an  order from the learned ACMM invoking Section 14 of the SARFAESI Act and the learned ACMM, in gross violation and ignorance of the fact that the function so invested in him under Section 14 is a judicial one, which requires an inquiry, affording opportunity of hearing to the parties to the lis before him, howsoever narrow may be the scope of the inquiry which he is empowered to conduct, is venturing to pass an order under Section 14 without affording any opportunity of hearing to the Plaintiff/Applicant. If that is allowed to happen, then the Plaintiff/Applicant  would be deprived of his valuable property in the purported recovery of an amount allegedly due from him by the Bank, while he is under no such obligation as he owes no amount to the Bank for the reasons stated hereinabove. Principles of natural justice require that the adjudicating authority ought to be independent and impartial, vitiated by no conflict of interest, it should hear the parties to the lis, and it should communicate to the parties the order passed by it.  The learned Magistrate, in the instant case, has failed to observe these basic principles.
32. The Plaintiff/Applicant asserts that no amount is due and payable from the Plaintiff/Applicant to the Respondent Bank where the Plaintiff/Applicant has a counterclaim by way of refund, compensation and damages. The Plaintiff/Applicant is entitled to enforce  equitable remedy of set off as of the date of the illegal classification of the Plaintiff/Applicant’s account as NPA together with interest thereon; so too the damages for loss and injury suffered by the Plaintiff/Applicant due to the act of crassa negligentia – gross negligence – at the hands of the Bank and its officers for whose action the Respondents no. ___ are jointly and severally liable.
33. Blackstone said, possession is the eleventh point in law. Even a raw junior, nay, a layman, knows that possession once lost, for all practical purposes is lost forever, and the concept of restitution, mandatory injunction, restoration of possession etc., are all illusory. From time immemorial it has been an accepted maxim that “domus sua cuique est tutissimum refugium” – every man’s house is his castle and fortress.  To the Plaintiff/Applicant, his home, of which he is facing dispossession, is his castle.  Nothing could be more cherish able and valuable to the Plaintiff/Applicant and for that matter for any human being, than his sweet home. The Respondent Bank has acted in complete derogation of the first principle of natural justice and by sitting in judgment over a contractual transaction between the Plaintiff/Applicant  on the one side and the Bank on the other. The Authorized Officer has failed to act within his jurisdiction and to perpetrate further injury instituted a  proceedings under Section 14 of the SARFAESI Act namely Case No. 801 /SA of 2016  where the Respondent Banks sought to the Plaintiff/Applicant of  his home, which the banks falsely claim to be a secured asset at its hands. The law of equity further states that ‘expressio unius est exclusion alterius’ or to say that if a statute provides that a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and the Respondent No. ____ herein, the Ld.Chief Metropolitan Magistrate, Esplanade found out and created his own alternative ways when the legal provision expressly provides the way in which the actions has to be made.  Hence the same illegal proceeding is liable to be challenged and declared non est in the eyes of law. Such an illegal procedure can be challenged whenever and wherever is tried to be implemented and is void ab initio.  ‘Lexinjustia non estlex’ or to say that the unjust law is not a law at all and least the administrative apathy.
34. Necesitas non habet legem – necessity knows or has no law. The instant Writ Petition is moved in view of the threat of dispossession of the very residential home of the Plaintiff/Applicant so too of other properties . Therefore there is no time to prepare a Writ Petition with any amount of perfection, not to speak of bringing on record all facts all materials, make all averments and seek all prayers which is the Plaintiff/Applicant is entitled in law. The Plaintiff/Applicant is filing the instant Writ Petition as extremely defective as it could be for without a Writ Petition on record, this court cannot be expected to pass any order, which is absolutely necessary in the interest of justice.  Hence, the instant Writ Petition under Article 226 of the Constitution.

GROUNDS

 

• It is travesty of justice that while Rs 7,63,000 crores as on 31.12.2017 is classified as NPA of 500 big companies including the Anil Ambani, Bhushan, Rula’s and the scamsters like Vijay Mallya , Nirav Modi, Vikram Kothari, Mehul Chokshi et al allowed to even leave the country scot-free, small traders and entrepreneurs who could not repay the loans availed of by them not because of their fault but of the fault of the bank are dispossessed of their very home that too without observing the first principle of Natural Justice.
• Its high time that the Union of India should consider with utmost gravity and urgency to bring about appropriate legislation to exclude the small and medium enterprises, professionals and traders, where the extent of credit facilities availed of is less than 5 crores from the provisions of the SARFAESI Act, as also to exclude one dwelling unit (residential home) from the provisions of the SARFAESI Act, even where the credit facilities extended is more than 5 crores but less than 10 crores, provided the value of the residential home is less than 1 crore in small and medium towns and more than 2 crores in metropolitan cities
• The doctrine of audi alteram partem – hear the other side – is the very foundation on which the common law is built, nay, it was the very foundation of the classical Roman Law based on which the common law is founded. Audi alteram partem is the foundation of the very concept of natural law which is considered to be sacrosanct by eminent men like Justin, St. Augustine, Thomas Aquinas et al. What were once considered to be natural law are what fundamental rights as adumbrated in our Constitution.  With the judgment of the House of Lords in Ridge v. Baldwin, 64 Appeal Cases 40 and the Constitution Bench judgments of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, Maneka Gandhi v. Union of India, AIR 1978 SC 597, Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664, Olga Tellis v.  Municipal Corporation of Bombay, AIR 1986 SC 180, etc., natural justice has to be observed, no matter the function discharged is administrative or judicial and where the statute is silent about that requirement, such obligation has to be read into the statute.
• The appointment of advocate commissioner by the Ld.CMM / 3^rd Additional CMM under section 14 of the SARFAESI Act,2002 is wholly unfounded, in violation of the express provisions of the Act and hence is non est in the eyes of law. Under the said provision and the scheme of the SARFAESI Act,2002 , only the officer subordinate to the CMM can be appointed for the enforcement of order and the appointment of Respondent No 8, as advocate commissioner is wholly unfounded, beyond the jurisdiction invested with the Ld.CMM. The doctrine expressio unius est exclusio alterius – if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner – squarely applies.

 

• Rest of the grounds are stated in the Paras _______ and hence not repeated.

 

6. RELIEF SOUGHT:

for the reasons stated herein above and those to be urged at the time of hearing it is most humbly prayed that this Hon’ble Tribunal be pleased to:

 

• Declare that the various Guidelines which the RBI has purportedly issued from time to time by recourse to which the accounts of the Plaintiff/Applicant has been classified as NPA as unconstitutional and void, without authority of law, arbitrary and illegal;
• To declare that Guidelines titled “Master Circular – Prudential norms on Income Recognition, Asset Classification and Provisioning pertaining to Advances” the RBI Guidelines RBI/2013-14/62 DBOD.No.BP.BC.1/21.04.048/2013-14 dated July 1, 2013 issued by the Reserve Bank of India, and RBI Circular bearing No. RBI/2014-15/73DBR.No.CID.BC.57/20.16.003/ 2014-15 dated 01.07.2014, are void ab initio;
• To declare that the Union of India has to consider with utmost gravity and urgency to bring about appropriate legislation to exclude the small and medium enterprises, professionals and traders, where the extent of credit facilities availed of is less than 5 crores from the provisions of the SARFAESI Act, as also to exclude one dwelling unit (residential home) from the provisions of the SARFAESI Act, even where the credit facilities extended is more than 5 crores but less than 10 crores, provided the value of the residential home is less than 1 crore in small and medium towns and more than 2 crores in metropolitan cities;
• To declare that section 13(4) and 14 of the SARFAESI Act, 2002 is unconstitutional and void in as much as it empowers the secured creditor/Chief Metropolitan Magistrate/District Magistrate, to secure the forceful dispossession of a borrower of his very residential home and render him and his family homeless even where he is not a wilful defaulter and further to declare that the right to a shelter is an essential ingredient of right to life under Article 21 of the constitution read with Article 14 & 19 there of ;
• To declare that the SARFAESI Act is unconstitutional and void in as much as it has served only the interest of the wilful defaulters, the traitors and the scamsters, who have availed of huge credit facilities in connivance with the officers of Banks and Financial Institutions without providing adequate collateral securities and further that the Act has been used as an instrument of plunder the oppression of the honest borrowers, who have mortgaged their properties in favour of the Banks far in excess of their very liabilities, nay, even their very residential homes.
• declare that declaration of the Plaintiff/Applicant as a wilful defaulter is one involving adverse civil consequences and thus one involving a lis, which function could never be invested upon the executive Government/a statutory body like the Reserve Bank of India, but could only be invested in a Court or Tribunal duly constituted and by virtue of a procedure which requires observance of the principles of natural justice;
• declare that the Respondent Bank is not entitled to any of the remedies which it seeks to enforce in terms of the notice under Sections 13(2) and Notice under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 as also the order which it seeks to secure under Section 14 of the said Act inasmuch as it is not the Plaintiff/Applicants who are guilty of any breach of contract and who are under any obligation in terms of the contract between them and the Respondent Bank, but the latter and its officers who are guilty of gross breach of contract, culpable negligence, customer unfriendly attitude and malicious and tortious actions, and thereby have caused damage and loss to the Plaintiff/Applicants far in excess of the very claim of the Respondent Bank, and, to put it succinctly, to grant in favour of the Plaintiff/Applicants a negative declaration that no amount is due from the Plaintiff/Applicants to the Respondent Bank;
• To declare that the properties which the bank falsely claims to be the secured assets at its hands, of the Plaintiff/Applicant, and especially the assets of the Company and its promoters of which the said persons are the absolute owners entitled to ownership, title and possession; that their right, title and interest in respect of the said properties should not be disturbed in any manner whatsoever; and that the proceeding under Section 13(2) & 13(4) so too Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 in the purported exercise of the powers vested in the Respondent Banks/Respondents, under the SARFAESI Act,2002 are nullity, and ‘non est’ in the eyes of law,  not merely for violation of the principles of natural justice, but vitiated by fraud and other illegalities;
• declare that the bar of jurisdiction of the Civil Court as contemplated under Sections 34, 35 and 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and under Sections 17 and 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is not absolute, but is limited to an inquiry as to the correctness or otherwise of the measures taken under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and where the entire proceedings are vitiated by fraud and violation of the principles of natural justice and statutory provisions and thus a nullity, the Civil Court has undoubted jurisdiction;
• To declare that the common law is the law of the land in terms of Article 372(1) of the Constitution of India and all disputes of the civil nature could only be adjudicated by civil courts except for the Tribunals which could be created in terms of Article 323 (B) of the Constitution and the Company Law Tribunal, DRT, DRAT, Authorised Officer under the SARFAESI Act, none of them come within the Seven categories of Tribunal enumerated in the Sub Article (2) of Article 323(D) and therefore are Ultra Vires the Constitution, incompetently instituted non est in law;
• To declare that access to justice, namely where a person, be it an animate one or an inanimate, artificial legal entity is an inalienable fundamental right, nay, very birthright and howsoever laudable could be a legislative objective, the said right cannot be taken away, that all legislations by which Tribunals or Forums are created in substitution of the Civil Court is liable to be construed as one invested of the jurisdiction to embark upon an enquiry for which alone it was created in substitution of the Civil Court and it cannot be so construed, nay, such Forums and Tribunals are indeed incapable of discharging the functions of the Civil Court in substitution whereof they are created, the Civil Court jurisdiction is not barred;
• Declare that the Tribunals and Forums created in substitution of the Tribunals and Forums created in substitution of the Civil Courts, namely the National Company Tribunal under the Act of 31 of 2016, The DRT under the Banking Laws of the Recovery of Debt due Acts, the Authorized Officer under Section 13(10) of the SARFAESI Act, so too the mechanism for insolvency resolution / liquidation contemplated under the Insolvency Code of 2016 or only constitute to be Tribunals/ Forums by recourse to which remedies entail in creditors and in particular secured creditors as against the Borrowers / Debtors, all, the said Acts / Forums created there under contemplate an enquiry which is wholly one sided, that under none of the aforesaid enactments a Borrower or debtor could institute a Suit/ Proceeding  whereby he could seek the enforcement of remedies in the province of declaratory, equitable and common law;
• Without prejudice to relief Clause (m) above, nay, in supplemental in furtherance thereof declare that the Respondent Bank have non-enforceable right against the Plaintiff/Applicant, for, the remedies of compensation and damages and set off which the Plaintiff/Applicant has against the Respondent far exceed the claim of the Respondents;
• Declare that the Plaintiff/Applicant, the purported borrower stands completely discharged of the obligation in terms of the Contract which the Plaintiff/Applicant had entered into with the Respondent Banking Institutions since the gross breach of contract, culpable and malicious actions at the hands of the Defendants and its officers and agents which has entailed in remedies in the realm of compensation and damages, set off and counterclaim to the principle debtor, hence completely discharges the Plaintiff/Applicant of its obligation in terms of the Section 134 of the Indian Contract Act;
• Declare that the Respondent Bank is guilty of gross breach of contract, culpable and malicious actions, nay, fraud and that the Plaintiff/Applicant is entitled to mandatory and prohibitory injunction to compel the Respondent Bank to perform their contracts, obligations so too restraining them from in any manner interfering with the peaceful conduct of the business, enjoyment of its assets and properties;
• declare that the Plaintiff/Applicant’s account was not liable to be declared as NPA except by authority of a circular or guideline which has the force of law, namely, one which is framed/issued by the Reserve Bank of India in exercise of the powers conferred on it by an Act of Parliament;
• declare that the Plaintiff/Applicant’s account was not liable to be declared as NPA except by authority of a circular or guideline which has the force of law, namely, one which is framed/issued by the Reserve Bank of India in exercise of the powers conferred on it by an Act of Parliament;
• to declare that the notice purportedly under section 13(2) of the SARFAESI Act,2002,  the notice purportedly under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which was never ever served upon the Plaintiff/Applicant  and of which he came to know from the advertisement in the Times of India daily as null and void, being in gross violation of the principles of natural justice and statutory provisions;
• declare that the entire proceedings at the hands of the Respondent Bank, beginning with the notice purportedly under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, which, till date, has not been served on the company/ Plaintiff/Applicant/Plaintiff/Applicant , and other steps and, in particular, the forcible dispossession of his properties, which the Bank falsely claims to be a secured asset at its hands, are null and void, one rendered without authority of law, in gross violation of the principles of natural justice and malicious and, therefore, one which will entail in the Plaintiff/Applicant common law, equitable remedies like compensation, damages, injunction etc.
• To declare that the Respondent banks which are guilty of breach of contract, civil breach of trust, culpable negligence, and malicious and tortuous action and therefore no right or title has inured in them to invoke sections 13(2)& 13(4) and 14 of the SARFAESI Act,2002;
• Declare that Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 is unconstitutional and void inasmuch as it permits the learned Chief Metropolitan Magistrate/District Magistrate to order dispossession of the property of a borrower/tenant or third party, whatsoever be his right, on a mere application at the hands of a Bank or Financial Institution, often a simple mortgage, without notice and without hearing him, and thus in violation of Articles 14, 19 and 21 of the Constitution of India or, in the alternative, and may be more appropriately, to read into the said Section an obligation to issue a notice and afford a hearing to the borrower/tenant or third party;
• To declare that the proceeding under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 as well as the ex-parte Order/process dated 22.01.2018 passed by the 3^rd  Additional CMM in Proceedings No.CC No. 801 /SA of 2016 so too Order dated 11.12.2016 so too from issuing Notice in purported execution of the Order dated 07.02.2018,  is a nullity;
• declare that the Ld.CMM / ACMM is not authorized to appoint advocate commissioner under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 and hence the writ of said appointment dated 22.01.2018  is one without jurisdiction, non est in the eyes of law;
• declare that the Respondent No.8 to the instant Writ Petition, namely, Adv. Vinayak Kamble, is usurper of a jurisdiction which does not belong to him inasmuch as his appointment as the advocate commissioner is without any authority of law and in violation of the express provisions laid down in section 14 of the SARFAESI Act, 2002 and the well established principle of delegates non potest delegare, wherein the sovereign powers of the state delegated to the officers of the state cannot further be delegated and hence the said appointment is void ab initio;
• declare that the 3^rd Additional CMM i.e the Respondent No. 10 has no authority to embark upon the inquiry of the application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 instituted by the Respondent Bankw;
• grant an order of perpetual mandatory and/or prohibitory injunction in favour of the Plaintiff/Applicant and against the Respondents restraining the Respondents, its agents, assignees, servants and privies from in any manner interfering with the peaceful possession and enjoyment of the properties of the  Plaintiff/Applicant which the Respondent bank falsely claim to be secured assets at its hands;

7. INTERIM RELIEFS

• To grant an order of ad-interim mandatory and/or prohibitory injunction in favour of the Plaintiff/Applicant and against the Respondents restraining the Respondents, its agents, assignees, servants and privies from in any manner interfering with the peaceful possession and enjoyment of the purported secured assets /scheduled property which the Respondent bank falsely claim to be secured assets at its hands; interfering with  the operation of the accounts of the Plaintiff/Applicant or his company maintained with Other Banks  and in particular proceeding any further pursuant to the notices purportedly under Section 13(2), 13(4) & 14  of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 so too from proceeding any further pursuant to the Order dated 11.12.2017 passed by the Ld. CMM and the Notice dated 07.02.2018 issued by the Respondent No.8 in purported execution of the Order dated 11.12.2017, pending the hearing and final disposal of the above Writ Petition;
• To grant an order of ad-interim mandatory and/or prohibitory injunction in favour of Plaintiff/Applicant and against the Respondents restraining the Respondents, its agents, assignees, servants and privies from in any manner interfering with the peaceful possession and enjoyment of the purported secured assets /scheduled property which the Respondent bank falsely claim to be secured assets at its hands; interfering with  the operation of the accounts of the Plaintiff/Applicant or his company maintained with Other Banks  and in particular proceeding any further pursuant to the notices purportedly under Section 13(2), 13(4) & 14  of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as well as Rule 8(5) and 9(1) of the Security interest(Enforcement) Rules,2002 so too from proceeding any further pursuant to the Order dated 11.12.2017 passed by the Ld. CMM  so too from proceeding further pursuant to the Warrant of Possession dated 07.02.2018 issued by the Respondent No. 8  pending the hearing and final disposal of the above Writ Petition;
• To grant an order of ad-interim mandatory and/or prohibitory injunction in favour of the Plaintiff/Applicant and against the Respondents restraining the Respondents, its agents, assignees, servants and privies from in any manner taking recourse to any precipitatory steps including, declaring the company and the  Plaintiff/Applicant  together with his family members as willful defaulters, as threatened by the letter dated 20/06/2016 or  cause to be published their names, photos, addresses, details of default dues etc., in electronic media, print media, cyber world  or in any form which will tilt or shake ‘vinculum juris, pendete lite’, pending the hearing and final disposal of the instant Writ Petition;
• Such other and further reliefs as this Hon’ble Court deems fit and proper;

 

8. MATTERS NOT PENDING WITH ANY OTHER COURT, ETC:

 

The Instant suit / application/ appeal is not barred by doctrine of estoppel or Res judicata

 

 

9. PARTICULARS OF FEE PAID IN TERMS OF RULE 8 OF THESE RULES:

 

Name of the Bank on which drawn:

 

Demand Draft Number  ________________, dated _________

 

 

10. Index in duplicate containing the details of the documents to be relied upon is enclosed.

 

 

11. LIST OF ENCLOSURES:-
12. eXHIBIT-“a”

                           Copy of the said guidelines, RBI Guidelines  No.

RBI/2013-14/62 DBOD.No.BP.BC.1/21.04.048/2013-

14 dated July 1, 2013.

2. Exhibit- “B”.

Copy of the said RBI Circular bearing No. RBI/2014-

15/73      DBR.No.CID.BC.57/20.16.003/2014-15 dated

01.07.2014

 

3. Exhibit- “C”

                           Copy of the Guideline bearing No RBI/2005-06/

159/DBOD/BP/BC No.34/2104132/2005-06 dated 8^th September, 2005

 

4. EXHIBIT-“D”.

Copy of the Notice under Section 13(2) of the

SARFAESI Act

 

5. EXHIBIT -“E”.

Reply dated 06.03.2017 to the Notice purportedly

under Section 13(2)

 

6. EXHIBIT-“F”.

Copy of the Notice dated 07.02.2018 issued by the Advocate Commissioner.

 

 

Advocate for Plaintiff / Appellant                               Plaintiff

 

 

V E R I F I C A TI O N

I, Avinash Shingnapurkar, son of Mr. Anand Shingnapurkar, aged about 48 years, Adult, Indian, residing at  A/401, Sunview CHS Ltd, Y-A-C Nagar, Kondivita Road, Marol, Andheri (East), Mumbai 400059, do hereby solemnly declare that what is stated in paragraphs 1 to ____ of the foregoing Suit / Application are true to my own knowledge and belief and what is stated in the remaining paragraphs are based on information which I believe to true and correct.

 

Solemnly declared at Mumbai       ]

this ___ day of February, 2018.    ]                                                                                                                                          Plaintiff/Applicant

 

 

 

Advocate for the Plaintiff/Applicant

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                                    … Respondents

 

AFFIDAVIT

 

I, Avinash Shingnapurkar,  son of Mr. Anand Shingnapurkar, aged about 48 years, Adult, Indian inhabitant residing at  A/401, Sunview CHS Ltd, Y-A-C Nagar, Kondivita Road, Marol, Andheri (East), Mumbai 400059, do hereby solemnly affirm and state as follows:-

1. That I am the Plaintiff/Applicants in the above Suit/ SA. I am fully acquainted with the facts and circumstances of the case and, hence, competent to swear this affidavit.

 

2. That, the accompanying Suit has been drafted by my Counsel on my instructions.I have read and understood the contents of the same which are true and correct to our knowledge and belief. No fact of it is false and nothing material has been concealed therefrom.

 

3. That, the Annexures filed along with the S.A are the true and correct copies of their respective originals.

 

Solemnly affirmed at Mumbai

on this _______day of February 2018.

 

Identified and explained by me                               Deponent

 

Advocate for the Plaintiff/Applicant

 

 

 

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

 

 

Memorandum of Registered Addresses

 

 

MRS. ROHINI M AMIn

Advocate for the Plaintiff/Applicant,

304, Hari Chambers, 3rd Floor,

S.B.S. Road, Opposite to Lions Gate

Fort, Mumbai-400 023.

(Mobile: 09920477447)

 

 

 

 

 

ADVOCATES FOR PLAINTIFF/APPLICANT

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

LIST OF DOCUMENTS

Sr. No.          PARTICULARS                            PAGE NO.

——————————————————————————

1. eXHIBIT-“a”

                           Copy of the said guidelines,

RBI Guidelines  No.

RBI/2013-14/62 DBOD.

No.BP.BC.1/21.04.048/2013-

14 dated July 1, 2013.

2. Exhibit- “B”.

Copy of the said RBI Circular

bearing No. RBI/2014-

15/73      DBR.No.CID.BC.57/20.16.003/2014-15

dated 01.07.2014

 

3. Exhibit- “C”

                           Another guideline of the RBI

bearing No. RBI/2012-

13/514 DBOD.BP.BC.No.99/ 21.04.

132/2012-13 May 30, 2013

 

4. EXHIBIT-“D”.

Copy of the Notice under

Section 13(2) of the

SARFAESI Act

 

5. EXHIBIT -“E”.

Reply dated 06.03.2017

to the Notice purportedly

under Section 13(2)

 

6. EXHIBIT-“F”.

Copy of the Notice dated 07.02.2018 issued by the Advocate Commissioner.

 

 

 

Advocate for Applicant / Plaintiff

 

 

 

 

 

 

 

 

I am not a member of Advocates Welfare Fund and hence court fees of Rs. 2 have not been affixed

Advocate

V A K A L A T N A M A

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

AVINASH ANAND SHINGNAPURKAR

401, Sunview Co-op Housing Society Ltd.,

Y-A-C Nagar, Kondivita Road,

Marol, Andheri (East),

Mumbai 400059                                                            …Plaintiff/Applicant

 

Versus

1. The Indian Bank

represented by its CMD,

Chennai.

 

1. The Authorised officer,

Indian Bank,

Chandavarkar Road,

Borivali (W), Mumbai

 

1. The Branch Manager,

Indian Bank,

Chandavarkar Road,

Borivali (W), Mumbai

 

1. Union of india

Represented by its secretary

In Ministry of Finance

Government of India,

Jeevan Dweep Buildings

Parliament Street, New Delhi.

 

1. The Governor,

     Reserve Bank of India,

      Central Office Building,

Shahid Bhagat Singh Road,

Mumbai-400 001

 

 

1. The Inspector of Police,

MIDC, Police Station

Andheri (E),Mumbai

 

1. Mr Vinayak Kamble

Advocate Commissioner

Appointed by Addl. CMM Mumbai,

Having address at A/6 Apartment,

Behind Kalika Mata Mandir,

Badlapur (E) Dist. Thane

 

1. The Chief Metropolitan Magistrate,

At Esplanade Mumbai

Fort, Mumbai- 400 001

 

9. 3^rd Additional Chief Metropolitan

Magistrate At Esplanade, Mumbai

Fort, Mumbai-400 001

 

1. The Bar Council of Maharashtra & Goa

Mumbai.

 

11. Union of India

Represented by its Secretary,

Ministry of Finance, New Delhi.

 

12. The State of Maharashtra,

represented by its Chief Secretary,

Mantralaya, Mumbai-400 032.

 

13. The Inspector in Charge

Sakinaka Police Station

Andheri (E), Mumbai

 

14. The Union of India, through

Ministry of Micro, Small and

Medium Enterprises

Udyog Bhawan,

Rafi Marg, New Delhi, Delhi 110001                     …Respondents

To,

The Registrar DRT II

Mumbai,

 

Sir,

I, Avinash Shingnapure, the Plaintiff/Applicant  herein, do hereby appoint Mrs. Rohini M.AMin, Advocate, to act, appear and plead for me in the above plaint.

IN WITNESS WHEREOF I have subscribed my hand hereto.

 

Dated this ____day of February, 2018.

 

Plaintiff/Applicant

Accepted:

 

 

MRS. ROHINI M AMIN

Advocate

304, Hari Chambers, 3rd Floor,

S.B.S. Road, Near Old Customs

Fort, Mumbai-400 023.

(Mobile:09920477447)

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

Avinash Shingnapurkar                                             … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                                       … Respondents

 

 

 

 

 

 

 

 

 

 

 

 

 

MEMORANDUM OF SUIT/ S.A

Dated this ____ day of February 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MRS. ROHINI M AMIn

Advocate for Plaintiff/Applicant

304, Hari Chambers, 3rd Floor,

S.B.S. Road, Near Old Customs Bus Stop. Fort, Mumbai-400 023.

(Mobile: 09920477447)

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

I N D E X (PART 1)

 

Sr. No.                              PARTICULARS                            PAGE NO.

========================================================

1. Synopsis
2. Memorandum of Suit /Appeal
3. Affidavit in Support
4. List of documents

 

 

Advocate for Plaintiff/Applicant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE DEBT RECOVERY TRIBUNAL-II, Mumbai

SECURITISATION APPEAL NO.               OF 2018

 

Avinash Shingnapurkar                                      … Plaintiff/Applicant

 

Versus

 

Union of India & ors                                            … Respondents

 

 

I N D E X (PART 2)

 

Sr. No.                              PARTICULARS                            PAGE NO.

========================================================

1. eXHIBIT-“a”

                                Copy of the said guidelines, RBI Guidelines  No.

RBI/2013-14/62 DBOD.No.BP.BC.1/21.04.048/2013-

14 dated July 1, 2013.

 

2. Exhibit- “B”.

Copy of the said RBI Circular bearing No. RBI/2014-

15/73            DBR.No.CID.BC.57/20.16.003/2014-15 dated

01.07.2014

 

3. Exhibit- “C”

RBI bearing No. RBI/2012-13/514

DBOD.BP.BC.No.99/ 21.04.132/2012-13

May 30, 2013

4. EXHIBIT-“D”.

Copy of the Notice under Section 13(2) of the

SARFAESI Act

 

5. EXHIBIT -“E”.

Reply dated 06.03.2017 to the Notice purportedly

under Section 13(2)

 

6. EXHIBIT-“F”.

Copy of the Notice dated 07.02.2018 issued by the Advocate Commissioner.

 

7. Vakalatnama

 

 

 

 

Advocate for Plaintiff/Applicant