The details of the properties as described in paragraph No.1 of the impugned order read thus: Description of the Property Section 14 Order Possession of the Secured Property by the Petitioner/Bank Whether Court Receiver has taken possession 1. Ambernath Plot No D36: Plot No D36, additional Ambernath Industrial Area, MIDC, Jambivali, Ambernath (E), Ulhasnagar, District – Thane. Ambernath Plot No D 42: Plot No D42 situated at additional Ambernath Industrial Area, MIDC, Jambivali, Ambernath (E), Ulhasnagar, District – Thane. 161-169 Physical Possession pending Symbolic Possession taken: 23.10.2017 @Pg. Prior to the institution of the suit, orders were already passed under Section 14 of the SARFAESI Act at the instance of the first respondent. Before the institution of the suit, the first respondent had already taken physical possession of the properties mentioned at S.Nos. Thus, the appellant cannot plead ignorance about the knowledge of the pending proceedings initiated by the first respondent Bank. The Trial Court ought not have passed a drastic order appointing Court Receiver without impleading the mortgagee as a party defendant. Instead of availing the remedy of the appeal, the first respondent took the extraordinary step of invoking the jurisdiction of the Bombay High Court under Article 226 of the Constitution of India by specifically challenging the order of appointment of the Receiver passed by the Civil Court in Bihar. However, we also find that the appellant has indulged in the suppression of material facts while persuading the Trial Court to pass a drastic order for appointing a Court Receiver. Hence, we dispose of the appeal by passing the following order: (a) We set aside the impugned order dated 27 September 2023 passed by the Bombay High Court and dismiss Writ Petition No.7064 of 2023 on the ground that a statutory remedy was available to the first respondent and therefore, the Bombay High Court ought not to have entertained the Writ Petition under Article 226 of the Constitution of India for challenging the order passed by a Civil Court in another State; Civil Appeal @ SLP(Civil)No.22744 of 2023 Page 8 of 11 (b) The appellant will carry out a formal amendment to the suit for impleading the first respondent bank as a party defendant No.5; (c) The order dated 24 January 2023 passed in Title Suit No.2024 of 2022 by the learned Civil Judge, Senior Division XII, Siwan shall remain stayed with a clarification that status quo as regards the five properties above, as prevailing immediately before the passing of the said order, shall continue to operate.
We make it clear that till the said application is pending, the order dated 24 January 2023 will remain in abeyance and status quo as prevailing just before passing of the said order, will continue to operate; (f) We also make it clear that in the event the order which may be passed on the application for appointment of Court Receiver by the Trial Court be adverse to the respondent No.1, the said order shall not be acted upon for a period of one month from the date of passing of the order; and (g) It is further made clear that notwithstanding this order, it will be open for the first respondent to initiate appropriate proceedings on the basis of the orders under Section 14 of the SARFAESI Act which are already passed and to take over possession of the remaining three properties in accordance with the law. The appeal is accordingly partly allowed on the above terms.
