TaxTMI 
TaxTMI 
2015 (9) TMI 1665
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....milar questions arise for consideration, they are being considered simultaneously. 2. In Special Civil Application No.9442 of 2015 the petitioner has prayed as under. "(a) be pleased to declare section 2 (1) (c) (iva) of the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 as ultra vires the Constitution of India and the Principal Act (Securitisation And Reconstruction Of Financial Assets and Enforcement Of Security Interest Act, 2002) and declare it as null, void ab initio and non-est and action taken by Respondent Bank under Securitisation Act, 2002 as illegal, without authority of law, null and void. (b) Be pleased to declare s. 2(d)(vi) of the Recovery of debts due to bank and ....
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.... dated 08.05.2015." 3. In Special Civil Application No.10642 of 2015 the petitioner has prayed as under. "(a) be pleased to declare section 2 (1) (c) (iva) of the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 as ultra vires the Constitution of India and the Principal Act (Securitisation And Reconstruction Of Financial Assets and Enforcement Of Security Interest Act, 2002) and declare it as null, void ab initio and non-est and action taken by Respondent Bank under Securitisation Act, 2002 as illegal, without authority of law, null and void. (b) Be pleased to quash and set aside s. 2(d)(vi) of the Recovery of debts due to bank and financial institutions act, 1993 as unconstitution....
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....d to quash and set aside the sale notice dated 26.05.2015 and Auction Sale Notice dated 10.06.2015 and impugned Section 14 proceedings initiated by the Respondent No.2 Bank by filing Cr.MA No. 141 of 2015." 4. In Special Civil Application No.11203 of 2015 the petitioner has prayed as under. "(a) be pleased to declare section 2 (1) (c) (iva) of the Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 as ultra vires the Constitution of India and the Principal Act (Securitisation And Reconstruction Of Financial Assets and Enforcement Of Security Interest Act, 2002) and declare it as null, void ab initio and non-est and action taken by Respondent Bank under Securitisation Act, 2002 as illegal....
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....onal, illegal, void ab initio, non est and null in the eyes of law. (fa) Be pleased to quash and set aside the appointment of the Authorised Officer i.e. Respondent no.2, made under Rule 2(a), Security Interest Rules, 2002 vide Board of Directors' resolution No. 14 dated 29-09-05. (g) Be pleased to quash and set aside the impugned order passed by the Collector Ahmedabad in DC/MAG/SECURITIZATION/ S.R No. 59 of 2013 and order passed by the Collector and District Magistrate Kheda in SRFAESI S.R No. 179 of 2015 dated 22.04.2015 and 30.04.2015 respectively under Section 14 of the Securitisation Act, 2002 as unconstitutional, illegal, void ab initio, non est and null in the eyes of law." 5. We have heard Mr.Vishwas Shah with Mr.Masoom....
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.... of the Securitisation Act, if they are so desirous and at that stage rights and contentions of both the sides may be kept open. He also submitted that in all the three cases respondent Bank in the purported exercise of powers under the Securitisation Act prior to the amendment in Securitisation Act has taken over the possession of the property in question. Since the action cannot be said to be legal as per the abovereferred decision of this Court in case of Neel Oil Industries (supra), the same should be returned to the petitioner with any condition which may be deemed fit by this Court. 7. Whereas Mr.K.K. Nanavati, learned counsel appearing for the respondent Bank submitted that as the action was prior to the amendment made for inclusio....
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....ossession of the property with liberty to the Bank to take further action under the Securitisation Act, we do not find that further observations and discussion are necessary to be issued in this regard. 10. Hence it is observed and directed that the action taken by the respondent No.2 Bank under the Securitisation Act prior to the amending Act, i.e. January, 2013 is held to be bad in law. Consequentially, property in question, possession of which is taken over, will be required to be reentrusted by respondent Bank to the petitioner by drawing appropriate Panchnama, with further condition that it would be open to the respondent Bank to deploy security for guarding of the property and there will be further prohibitory injunction against the....