*Debt Recovery Tribunal (DRT) stays the possession of property by the Abhudaya Bank*
Mumbai : In a surprise move, the DRT (III) Mumbai today directed Abhyudaya Bank not to take coercive action against the borrower and tenant in the proceeding of recovering possession of the mortgaged property. Adv. Nilesh Ojha who appeared for the tenant (in DRT case S.A. No. 142/2017) , pointed out to the DRT Judge Shri. K Subbarao that the matter is subjudice in the Small Cause Court and as per the law laid down by the Supreme Court, the issue of tenacy has to be decided by Small Cause Court only. The Abhyudaya bank had opposed the application on the basis of amendment of section 17 (4) (A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act. In counter to that, Mr. Ojha explained to the court as to how the amendment could not be read against the provision of the Supreme Court judgment. In support of his contention, he relied on a recent judgment dated 8th August 2017 in Remo’s case and requested the Court to take action under contempt against the Chief Metropolitan Magistrate and Abhyudaya Bank including the Counsel for the Bank for acting contrary to the law. After going through the legal position and case laws cited by Adv. Nilesh Ojha, the DRT judge Mr. K Subbarao came to the conclusion that prima facie it is a case for granting injunction against the Bank and in favour of the tenant and therefore the Court directed Abhyudaya Bank not to take any coercive steps against the tenant in respect of the property.
In an unexpected turn of events, the DRT Judge Shri. K Subbarao, after acknowledging the legal position explained by Adv. Ojha, proactively granted stay in favour of the same tenant in another case involving a different property, in which he had earlier refused to grant injunction!.
This tenant has already filed a case under section 340 of Criminal Procedure Code (Cr.P.C) in the Court against the Bank.
Adv. Nilesh Ojha has authored several books on law, the recent one being a book on the application of section 340 of Cr.P.C. He has also published books on Law of precedents, Law for prosecution of judges etc.
Recently, in another case, the Division Bench of Bombay High Court, on 20th September 2017, in WP No. 23041/2017 issued notice regarding prosecution of ICICI Bank before the DRT. In this matter, Adv. Nilesh Ojha’s argument on behalf of the borrower was that the DRT itself should take action against Bank. But the DRT refused to register the application under section 340 of Cr.P.C. on the ground that it has no power and jurisdiction to initiate criminal proceeding against the Bank even if the Bank files false affidavit and evidences before the DRT. Hence Adv. Nilesh Ojha had approached the Division Bench of Bombay High Court for direction to DRT to register the complaint under section 340 of Cr. P.C to take action against ICICI bank and after hearing his argument, the Division Bench on being satisfied that it is the matter which needs consideration by the High Court and therefore the Bench presided over by Justice Mr. Anoop Mohta and Justice Smt. Bharathi Dangre issued notice to the Respondents. Now the matter is fixed on 9th November 2017.