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AV IN THE SUPREME COURT OF INDIA
^\, CIVIL APPELLATE JURISDICTION
i special Leave Petition (C) No. 26949 Of 2OL7
rN THE MAI-TER OF
M/S Kamakshir Hotels Pvt. Ltd. ...PETITIONERS
Versus
Union of India & Ors. ....RESPONDENTS
PAPER BOOK
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE J URiSDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 26943 of 2OL7
IN THE MATTER OF
M/S. KAMAKSHIR HOTELS PVT. LTD. ... PETITIONER
Versus
THE UNION OF INDIA & ORS ... RESPONDENTS
COUNTER AFFIDAVIT
COUNTER AFFIDAVIT ON BE}]ALF OF RESPONDENT NO. 4& 5
I,
Ravindra Bhalchandra Khajanji, Age: 54 years,
Occ: A.D.M., Nagpur R/o. Nagpur today at Nagpur do
hereby state on solemn affirmation that:
1) I have received a copr,, of the Special Leave Petition
alongwith its annexures. I have gone through and
/tx understood the contents of the same, I am filing this
I /. short counter affidavit so as to oppose interim relief
1 as prayed for by the petitioners. I crave leave of this
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Hon'ble court to file my detail counter affidavit as
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\ and when it is necessary.
2) The Petitioner in the present Special Leave petition
has prayed to grant Special Leave to Appeal to the
petitioners under Article 136 of the Constitution of
India against the impugned judgement and final
order dated 27.09.2077 in the Writ Petition 6326 of
Z0l7 passed by the Hon'ble High Court of
Judicature at Bombay Nagpur Bench at Nagpur and
also sought to pass such other or further
order/orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the
case. The Petitioners have also sought to grant
ex-parte ad-interim stay of the operation against
the impugned judgement and final order dated
27.09.20L7 in Writ Petition No. 6326 of 20L7
passed by the Hon'ble High Court of Judicature at
Bombay Nagpur Bench at Nagpur during pendency
of the Special Leave Petition and pass such other or
further order/orders as this Hon'ble Court may
deem fit and proper in the facts and circumstances
of the case.
3) The answering Respondents have perused in details
the averments made in the present Writ petition as
also the contents of the Annexure Nos. P-1 to P-25
filed therewith. The answering Respondents have
filed the instant reply for the purpose of opposing
the petition filed by tlre petitioner and grant of any
interim relief whatsoever to the petitioner. The
answering respondents submit that the matter
which are borne out from the record and not
adverse to the answering respondents need no
reply. However, the matters which are adverse and
against the record of the office of answering
respondents are completely denied by these
I respondents. That this Hon'ble Court has passed
order on 27.70.2017 in following terms:
"According to the petitioner, a sum of
Rs.6,24,00,000/- (Rs' Six Crores, Twenty
Four Lakhs) has already been recovered
against the original loan of
Rs.2,00,00,000/- (Rs' Two Crores)' in
these circumstances, issue notice to
consider whether it is necessary to sell the
residential house of the Director of the
petitioner-Company and the appurtenant
agricultural land"'
4) The petitioner has assailed the impugned
communication dated tt.Og'20L7 issued by the
High
answering respondent no' 5 before the Hon'ble
Court bench at Nagpur in W'P' No'6326/2017 as
present
against the answering respondents and the
respondent no' 1 to 3 and 6 to 9 where the Hon'ble
High Court, Nagpur Bench Nagpur has passed the
impugnecl order on 27 'O9'7017 thereby Writ
Petition filed by the Petitioners came to be
dismissed on the ground that there is no substance
in the grievances as presented by the petitioners'
s) It is pertinent to submit here that then District
Magistrate Nagpur i'e. the present respondent no'4
vide order dated 06.09'2012 (Annexure P-B)
passed order under section 74 of SARFAESI
Act,2002 whereby the Tahsildar Katol i'e' the
present respondent no' 9 was directed to assist the
Bank for taking over the possession of the
property
as described in the order dated 06'09'2012
(Annexure P-B).
6) It is also Pertinent to state here that District
Collector, NagPur and District Magistrate, NagPur
I i.e. present respondent no.4 vide order dated
O4/10/20t4 has conferred his power as provided
under the provisions of Securitization and
Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 upon the Additional
District Magistrate, Nagpur i.e. the present
respondent no.5 and since then the Additional
District Magistrate, Nagpur is exercising the said
power on behalf of the District Magistrate, Nagpur'
The impugned communication dated tl'09'2017
(Annexure P-18) challenged in the present matter
in Securitization application No.25/20tt has been
issued by the Additional District Magistrate, Nagpur
in exercising the said power as has been conferred
by the District Magistrate, Nagpur upon the
Additional District Magistrate, Nagpur'
7) It is also pertinent to submit here that vide
application dated 17.09.20L7 the present
respondent no. 6 Bank has applied before the office
of answering respondent pointing out that in case
no.25/2011 an order has been issued on
t2.O9.1OLZ by the District Magistrate, Nagpur
whereby it has been ordered to take the possession
of the property however till date the possession of
the same is not taken and handed over to the Bank
and therefore the said communication dated
11.09.2017 along with the said order dated
72.09.2012 has been forwarded to present
respondent no. 9, Tahsildar and Executive
Magistrate, Katol for taking possession within 2
days and to hand over the same to the authorised
officer of the Bank and submit compliance report
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vide communication dated 11.09.2017 issued by
the office of the answering respondent.
8) It is significant to submit here that the as
aggrieved by the petitioners against the judgement
and order dated 27.09 .20L7 passed by the Hon'ble
High Court bench at Nagpur the petitioners have
contended in the present S.L.P. that the Hon'ble
High Court did not consider that the learned District
Magistrate while passing the impugned order dated
77.09.2077 for taking the possession within 2 days
did not grant any opportunity of hearing to the
petitioners which amounts to defiance of principle
of natural justice and further contended that the
Hon'ble High Court did not consider that once the
order is passed under section 14 of SARFAESI Act,
2002 by Additional Magistrate on an application of
secured creditor then subsequent order regarding
compliance of its earlier order is illegal and
arbitrary as the Magistrate would become functus
Officio and cannot reconsider his own order even
with aid of section 21 of General Clauses Act,1897
and further pointed out that the application dated
7.09.2077 of the Respondent No. 6 Bank was not
accompanied by any Affidavit which does not meet
essential requirement of section 14 of SARFAESI
ACT are concerned the same are specifically denied
for the reasons the impugned communication dated
tt.O9.2Ol7(Annexure P-18) is only direction in as
much as the order dated 12.09 .2072 is in existence
and so far the same is not set aside by the
competent court of law.
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9) Under such facts and circumstances the judgement
and order passed by the Hon'ble High Court Bench
at Nagpur dated 27.09.2077 in W,P. No 6326/2077
deserves to be maintained.
1O) No additional facts are stated in the counter affidavit.
1 I
Hence this counter affidavit. t
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DEPONENT
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VERIFICATION at ltzlt+
I,
Ravindra Bhalchandra Khajanji, Age: 54 years,
Occ: A.D.M., Nagpur R/o. Nagpur do hereby state on
solemn affirmation that the contents of above counter
affidavit in paragraphs no. 1 to 10 are true and correct to
the best of my knowledge.
Hence verified at TJAE PUK on this
9,o day of Dis<nbeL 20t7. /J
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I DEPONENT
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