Justice Manish Pitale, Justice Shreeram V. Shirsat, Bombay High Court
Bombay High Court Orders Tahsildar And Police Officer To Appear Personally If They Fail To Enforce 16-Year-Old SARFAESI Possession Order
|The Bench directed "adequate, reasonable, proportionate and necessary force" to overcome obstruction, seeking personal appearance and explain non-compliance by affidavit if directions are flouted, in possession dispute involving Kotak Mahindra Bank.
The Bombay High Court has authorised use of police force and warned state functionaries of personal accountability to finally enforce a sixteen-year-old possession order under the SARFAESI Act, 2002, in favour of secured creditor Kotak Mahindra Bank Limited, holding that continued obstruction of statutory possession proceedings "cannot continue ad nauseam" and that the "majesty of law has to prevail".
The Court further held that if its directions for handing over the secured asset are not complied with, the Tahsildar, Mira-Bhayandar and the Senior Inspector of Police, Navghar Police Station shall personally appear before the Court on the next date of hearing and file an affidavit explaining why physical possession could not be taken, making clear that the police officer "shall, under no circumstances, abstain from complying with the orders of this court".
A Division Bench comprising Justice Manish Pitale and Justice Shreeram V. Shirsat, in a batch comprising a writ petition filed by Kotak Mahindra Bank Limited and a connected contempt petition filed by the borrower's representative, Reshma Bhavesh Shah, along with interim applications, observed, “We have also gathered an impression that the Respondent No. 2, has deliberately chosen not remove her entire belongings from the secured asset. We are of the opinion that the Respondent No. 2 has sufficiently dragged the proceedings under one pretext or the other. This cannot continue ad nauseam. The Majesty of law has to prevail. No person will be permitted to subvert the rule of law”.
Advocate Sanjay Anabhawane appeared for the petitioner, Advocate Mathews Nedumpara appeared for the contempt petitioner-respondent no. 2 in this petition, and Tanu Bhatia, AGP appeared for the State-respondent.
Kotak Mahindra Bank, as assignee of ICICI Bank, held a secured interest over a residential flat in Mira-Bhayandar, Thane, created by way of equitable mortgage by the original borrowers, Mr. Irshad Ansari and Mrs. Asiya Ansari. Upon default, the loan account was classified as an NPA, and measures under Sections 13(2), 13(4) and 14 of the SARFAESI Act were initiated. Though the District Magistrate, Thane directed the Tahsildar to assist in taking physical possession as early as March 2010, the Tahsildar and local police repeatedly failed to execute this order over more than a decade, with several attempts to take possession being thwarted by obstruction from Respondent No. 2 and her family, and, on at least one occasion, by the Tahsildar's office itself misplacing the original order.
After multiple rounds of litigation, including a 2023 writ petition, an order dated July 14, 2025 directing execution within eight weeks, and further writ petitions filed by Respondent No. 2 on September 23 and 24, 2025 and October 10, 2025, the Bank was eventually permitted to take possession, which occurred on October 13, 2025.
Respondent No. 2 was thereafter permitted, by order dated October 15, 2025, to retrieve her belongings from the flat, subject to an undertaking that she would exit immediately after doing so, on pain of contempt. She subsequently filed a contempt petition alleging that the possession notice issued on October 7, 2025 did not provide the full seven-day period directed by the Court's earlier order, which the Bench found to be a case of inadvertent miscalculation rather than wilful disobedience, and accordingly dismissed.
Having dismissed the contempt petition, the Bench turned to the Bank's writ petition seeking effective execution of the 2010 order and compliance with the October 2025 order permitting removal of belongings.
“We therefore direct the authorised officer of the Petitioner, Tahsildar Mira-Bhayandar, Respondent No. 3 and the Respondent No. 2 Reshma Bhavesh Shah, to remain present on 25/08/2026. The Tahsildar shall in presence of all the parties present, open the seal/lock of the secured asset and Respondent No. 2 i.e Reshma Bhavesh Shah shall remove all the movable articles and her belongings present in the secured asset. The Tahsildar, Mira-Bhayandar shall make an inventory of the list of articles which the Respondent No. 2 would be removing and a copy of the list shall be given to the Contempt Petitioner and her signature shall be obtained on the counter copy. The Respondent No. 3 is directed to provide adequate police personnel which shall include lady constables as well at the time of removing the articles/belongings lying in the secured asset…”, it directed.
“…In the event, the Respondent No. 2 or any other person at her instance, creates any obstruction, the Respondent No. 3 through lady constables, shall use adequate, reasonable, proportionate and necessary force to prevent any such obstruction. Needless to mention that the Respondent No. 2 shall enter the Secured asset (Flat) only for the purpose of removing her belongings and thereafter exit the same in order to enable the Petitioner Bank to once again lock the secured asset. The absolute and vacant possession of the secured asset free from assets of the Respondent No. 2, shall be handed over to the petitioner (secured creditor). The police shall properly video graph/record the entire process of removing of articles and belongings and preserve the same for further reference.”, it directed further.
Cause Title: Kotak Mahindra Bank Limited v. State of Maharashtra and Others, Writ Petition No. 7547 of 2026
Appearances:
Petitioner: Sanjay Anabhawane i/b Ms. Medha Rane, for the Contempt Petitioner/Respondent No. 2: Mathews Nedumpara, Hemali Kurne, Dayanand Hebballi.
Respondents: Fatima Lakdawalla, AGP, and Tanu Bhatia, AGP, Oduvil Mohandas with Farah Broacha and J.P. Kapadia i/b Little & Co, Advocates.