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Cambay Sez Hotels Pvt. Ltd. v/s Board of Approval for Special Economic Zone

    Letters Patent Appeal No. 913 of 2020, Special Civil Application No. 10376 of 2018 & Civil Application (For Stay) No. 1 of 2020

    Decided On, 23 February 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE CHIEF JUSTICE MR. VIKRAM NATH & THE HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

    For the Appearing Parties: Aspi Kapadia, Zahiruddin S. Saiyed, Abhishek M. Mehta, Kshitij Amin, Advocates.



Judgment Text

Vikram Nath, C.J.

1. We have heard Mr. Aspi Kapadia, learned counsel for Mr. Zahiruddin S. Saiyed, learned advocate appearing for the appellant, Shri Abhishek M. Mehta, learned counsel for the respondent No.4 and Mr. Kshitij Amin, learned counsel for the respondent No.2.

2. This appeal under Clause 15 of the Letters Patent has been preferred by the unsuccessful writ petitioner assailing the correctness of the judgment and order dated 20.04.2020 passed in Special Civil Application No.10376 of 2018 whereby the learned Single Judge for reasons recorded in the judgment dismissed the petition.

3. The present appellant and also the original writ petitioner, who was earlier registered as M/s. Dahej Hospitality Private Limited subsequently substituted as M/s. Cambay SEZ Hotels Private Limited was a co- developer under the provisions of The Special Economic Zones Act, 2005 (for short, "2005 Act"). The appellant had taken loan from Small Industries Development Bank of India (for short, "SIDBI"). On account of default in payment of the said loan, the SIDBI initiated proceedings under Section 13 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, "SARFAESI Act"). The auction proceedings were held in which the respondent No.4 along with the four directors of respondent No.4 company participated, the bid was accepted and a Sale Certificate dated 07.01.2017 was issued incorporating that the sale was in favour of [1] Shri Jignesh Uttambhai Thakkar, [2] Shri Hemant Tribhuvanbhhai Patel, [3] Shri Daxeshbhai B. Patel and [4] Smt. Vishaka Vipul Thakkar (promoter directors of proposed SPV viz. Shreekunj Hospitality Private Limited) (the purchaser).

4. This Sale Certificate is dated 07.01.2017 signed by the Authorized Officer of the bank. Thereafter another Sale Certificate is said to have been issued on 20.01.2017, in which the purchaser is shown as Shreekunj Hospitality Private Limited (the purchaser). The above fact is being mentioned on account of an argument advanced by Mr. Kapadia relating to the two sale certificates. The Debts Recovery Tribunal while disposing of the Securitization Application No.84 of 2014 passed final judgment on 15.07.2019.

5. Mr. Kapadia has raised an argument that the Debts Recovery Tribunal had held the second Sale Certificate dated 20.01.2017 to be of no value in the eye of law and that the Sale Certificate dated 07.01.2017 would prevail over the subsequent sale certificate. The order dated 15.07.2019 according to learned counsels for the parties is challenged by way of appeals before the Debts Recovery Appellate Tribunal and the appeals are pending. In the meantime, the auction purchaser applied before the Board of Approval under the 2005 Act for being recognized as a co-developer in place of the writ petitioner - appellant. The Board of Approval vide their resolution of Item No.82.9 in the meeting dated 04.04.2018 cancelled the co-developer agreement with the petitioner - appellant and substituted it by the present auction purchaser - respondent No.4. It is this decision of the Board of Approval which was challenged by way of the Special Civil Application No.10376 of 2018. The learned Single Judge after examining the complete material on record and the submissions advanced did not find any merit in the petition.

6. Admittedly the auction under the SARFAESI Act had been settled in favour of the auction purchaser, be it the Directors of the respondent No.4 company or the company would not make any difference. The fact remains that the petitioner - appellant having lost right, title and interest over the immovable and movable properties covered under the sale, could not have continued as co-developer, dismissed the writ petition.

7. Before us, Mr. Kapadia has vehemently sought to argue that the Debts Recovery Tribunal in its order dated 15.07.2019 having held that the second sale certificate was no certificate in the eye of law and only the first sale certificate will prevail, as such the decision of the Board of Approval to acknowledge and recognize the respondent No.4 as co-developer was bad in law. According to him, it is the four directors only, who could have been acknowledged or accepted as a co-developer, but not the company.

8. In our considered opinion, this argument does not lie in the mouth of the present appellant - petitioner, who admittedly was defaulter and its assets both movable and immovable had been auctioned by the bank in the proceedings under the SARFAESI Act and such auction having been confirmed and sale certificate having been issued, whether it is the four directors of the company and the name of the company also finds place in the first sale certificate or it is company as per the second sale certificate, would not make any difference to the present writ petitioner - appellant. The order of the Debts Recovery Tribunal and any challenge to the auction proceedings, if ultimately the petitioner - appellant succeeds woul

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d have its own result and outcome, but so long as the auction stands confirmed, no relief or benefit can be granted to the appellant - petitioner. 9. Thus, we do not find any infirmity in the order passed by the learned Single Judge. On the above ground alone, the appeal would be liable to be dismissed. The learned Single Judge has dealt with in much greater detail, the other arguments also. 10. Accordingly, we dismiss this appeal as being devoid of any merit. 11. Consequently, the connected Civil Application stands disposed of.
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