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TMI Blog2015 (4) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... ere automatically transferred to it in view of Section 31 of the DRT Act and therefore it was impermissible in law for the High Court to direct the Court Receiver to sell the property of the respondent in public auction by executing the Court decree, which action of the Court Receiver is void ab initio in law. The provisions of the Limitation Act are applicable to the proceedings of the DRT in view of Section 24 of the Act of 1993 and therefore, the provisions of Section 5 of the Limitation Act are applicable to the provisions of the said Act. The same has not been examined and considered by the DRT-II and the DRAT at the time of passing the impugned orders in the writ petitions. In view of the foregoing reasons, the legal contentions urged on behalf of the appellant-Bank have no substance in the matter for the reason that the recovery certificate issued on 29.11.2004, was sought to be modified by the appellant-Bank itself by filing an application before the DRT-II and the same has not been modified, which is another strong ground for the respondent to file Misc. application for the cancellation of the sale of the property in favour of the appellant-Bank, along with condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed by this Court on 23.03.1998. 4. Thereafter, the High Court directed the Court Receiver by its order dated 03.12.1999, to sell the mortgaged property of the respondent and permitted the appellant-Bank to participate in the auction, and the Court Receiver issued notices for auctioning the mortgaged property. The auction was held on 06.05.2000 at which the appellant-Bank purchased the mortgaged property for ₹ 2,00,00,000/-, the sale of which was approved by the High Court vide its order dated 21.07.2000. The Court Receiver issued the Sale Certificate on 18.4.2002 and the same was registered in the name of the appellant-Bank. Thereafter, a series of applications and proceedings were initiated by the respondent before the DRT, DRAT and different High Courts and Civil Courts seeking various reliefs against the appellant-Bank. After the period of 7 years of the issuance of the recovery certificate in favour of the appellant-Bank, the respondent moved a Misc. application before the Recovery Officer to set aside the sale of the mortgaged property which was dismissed on 2.12.2011 by DRTII, Mumbai. The respondent moved an application for rectification of recovery certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent filed Misc. Appeal No. 35 of 2012 before the DRAT questioning the correctness of the above order and prayed to set aside the same and allow the application by condoning the delay in filing that application before the DRT. The DRAT vide its order dated 10.4.2012 dismissed the appeal holding that the same is barred by limitation and no proper and satisfactory explanation was assigned by the respondent. 6. Being aggrieved of the same, the respondent approached the High Court by filing Writ Petition No.3652 of 2012 questioning the correctness of the order dated 10.04.2012 passed by the DRAT urging various grounds with a prayer to set aside the above said order. The High Court after hearing the parties vide its order dated 29.08.2012 has held that the order passed by the DRT-II in dismissing the application of the respondent without deciding the issue i.e. whether the public auction of the sale of the mortgaged property conducted by the Court Receiver as per the direction of the High Court, after the execution proceedings initiated by the appellant-Bank against the respondent stood transferred to the DRT in view of Section 31 of DRT Act as the DRT came into existence on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation under the aforesaid provisions of the Limitation Act. In support of his submissions, he has placed reliance upon the Constitution Bench judgment of this Court in Dadi Jagannadham v. Jammulu Ramulu Ors.(2001) 7 SCC 71 which decision is followed by this Court in another case viz. Annapurna v. Mallikarjun Anr. (2014) 6 SCC 397. He has further contended that the decree was passed by the Bombay High Court in the original suit proceedings way back on 9.12.1996 in favour of the appellant-Bank against the respondent for recovery of the debt amount due from him. The sale of the property of the respondent was conducted by the Court Receiver, who was appointed by the High Court in the execution proceedings initiated by the appellant-Bank by issuing notices on 08.09.1998 and 07.12.1998 for conducting the sale in public auction of the said mortgaged property of the respondent. The DRT, Mumbai was established on 16.07.1999 pursuant to the notification issued by the Central Government under the provisions of the Act of 1993. Further, it has been contended by him that although, the DRT was empowered to appoint the Court Receiver for conducting the sale of the mortgaged property in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal as the same is not in accordance with law. 10. It has been further contended by him that the order dated 3.12.1999 passed by the learned Single Judge of the High Court of Bombay directing the Court Receiver to proceed with the sale of the mortgaged property of the respondent in the execution proceedings pursuant to the decree passed by it with the respondent s consent and therefore, it is not permissible for him at the belated stage to turn around and contend that the execution of the decree and sale of the property by the Court Receiver in the public auction is not legal and valid. Further, the High Court has exercised its power in issuing the direction to the Court Receiver for conducting the sale of the property through public auction on the basis of the judgment of Bombay High Court in the case of Industrial Credit Investment Corporation of India Ltd. v. Patheja Brothers Forgings And Stampings Ltd. Ors.(2000) 2 BOMLR 567 in which it has examined the provisions of Section 3 of the Act of 1993, wherein it has held that after 16.7.1999, in several proceedings, the parties have challenged the power of the Court Receiver to manage the properties in view of the DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtgaged property in execution of the order/decree dated 09.12.1996 is null and void ab initio in law and therefore, the same is wholly unsustainable in law. He has placed reliance upon the cases of this Court which will be adverted in the later portion of the judgment that the question of limitation does not arise at all in fling application for setting aside the sale as the same is vitiated and void ab initio in law. 12. The said rival legal contentions are examined by us very carefully with a view to find out as to whether the impugned judgment and order warrant interference keeping in view the interpretation of the provisions of the DRT Act and the constitutional validity of the Act of 1993, which has been upheld by this Court in the case of George v. State of Kerala (2002) 4 SCC 475 and the other decisions of this Court referred to supra upon which reliance is placed by the learned counsel on behalf of the respondent. 13. The learned Solicitor General appearing for the appellant has placed reliance on the following judgments of this Court, upon which the High Court has relied viz. State Bank of Bikaner Jaipur v. Ballabh Das Co. Ors.(1999) 7 SCC 539 and Punjab Nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (emphasis laid by this Court) In view of the law laid down by this Court in the above cases upon which strong reliance is placed by the learned counsel for the respondent, the submission made by the learned Solicitor General to distinguish the same on facts cannot be accepted by us as the same is contrary to the law laid down by this Court. 14. The other contention of the learned Solicitor General that the sale of the mortgaged property made by the Court Receiver in favour of the appellant-Bank by way of execution of the decree dated 09.12.1996 passed by the High Court and issuance of the sale certificate in favour of the appellant-Bank and handing over of the possession of the schedule property to it on 08.08.2000, and the Miscellaneous Application filed by the respondent before the DRT seeking the relief as stated above, cannot be entertained and accepted by us in view of the above referred cases upon which strong reliance placed by the learned counsel on behalf of the respondent. The contention urged on the question of limitation by the learned Solicitor General on behalf of the appellant-Bank placing reliance upon the decisions of this Court in the cases of Dadi J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as incompetent to try the same, on its transfer by consent of parties, to a court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction. 17. In Barton v. Fincham, (1921) 2 KB 291, 299, wherein it was held that: the court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act. In view of the aforesaid legal principle laid down by this Court after referring to its earlier decision, Privy Council judgment and also the Kings Bench decision, we are of the view that the decree which is sought to be executed by the Court Receiver as per the order dated 3.12.1999 passed by the High Court, giving directions to him to sell the mortgaged property of the respondent in the execution proceedings of the decree and the subsequent proceedings of the Court Receiver, including the confirmation of the sale and the issuance of the sale certificate in favour of the appellant-Bank is void ab initio in law. In view of the law laid down by this Court in the cases referred to supra, the contentions urged by the learned Solicitor General on behalf of the appellant-Bank cannot be accepted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k have no substance in the matter for the reason that the recovery certificate issued on 29.11.2004, was sought to be modified by the appellant-Bank itself by filing an application before the DRT-II and the same has not been modified, which is another strong ground for the respondent to file Misc. application for the cancellation of the sale of the property in favour of the appellant-Bank, along with condonation of delay application urging tenable grounds. 18. The issue raised by the respondent in the present case strikes at the very authority of the High Court in permitting the Court Receiver by its order dated 3.12.1999 to auction the mortgaged property of the respondent in public auction pursuant to the decree passed by the High Court in favour of the appellant-Bank. The above said important aspect of the case is required to be examined and considered by the DRT-II in the Miscellaneous application which is remitted back to it in the impugned judgment of the High Court. 19. Further, we make it clear that we have recorded our reasons in this judgment on the basis of the rival legal contentions urged on behalf of the parties. Nonetheless, the DRT-II is required to examine the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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