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TMI Blog2015 (9) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ration that is claimed is that the Debt Recovery Tribunal (for short "DRT") before whom the petitioner has filed an appeal is a substitute for an ordinary civil court and, therefore, all requirements, including that of territorial jurisdiction must be read into the provisions of the SARFAESI Act. This relief is claimed on the footing that an appeal under section 17(1) of the SARFAESI Act is an original proceeding. It is akin to a suit. Therefore, the DRT within whose territorial limitation the cause of action arises alone is empowered to determine and try it. In the circumstances, this Court should declare that the DRT before whom an application is filed by the State Bank of India and under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short "RDB Act") is not maintainable. It is also not maintainable by applying the principle of issue estoppel. 3. Mr. Nedumpara, learned counsel appearing for the petitioner made oral submissions as well as tendered a written note of his submissions. He submits that the present Writ Petition is maintainable because even though the proceedings before the Tribunal may be pending the reliefs that are claimed are under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is no forum in the eyes of law. He is a coram non-judice. The whole inquiry is a farce and for all these reasons the appeal to the Tribunal must be meaningful and purposeful. The Tribunal must have all powers and is indeed vested with them to decide vexed questions. In the present case, the Tribunal lost sight of the fact that the petitioner having filed an appeal, the secured creditor could not have then turned around and pursued the application before the DRT. The principle that no man should be vexed twice for one and the same cause is invoked. For all these reasons, it is submitted that the present petitioner is required to face and defend multiple proceedings viz. as defendant / opposite party in Original Application No.17 of 2011 instituted by the bank viz. State Bank of India as also the proceedings under the SARFAESI Act. It is in these circumstances that it is prayed that this Court should grant the reliefs. 5. The written note of submissions highlights the oral arguments in details and by relying on legal provisions. The petition is also containing the same contentions but they are supported by precedents. Paras after paras from Supreme Court judgments are reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by this Court is of 24th April, 2015. The suit in the court at Vasai was filed on 21st April, 2015. The Civil Judge, Senior Division, passed a protective order but what the contesting respondents to this Writ Petition have pointed out is that the party-plaintiff in that suit and the present petitioner have colluded with each other. They have filed a suit to nullify the concluded action under the Securitisation Act. The true facts have been set out and of a sanction of term loan of Rs. 13,46,00,000/- which was secured by creating an equitable mortgage and by depositing the title deeds. These were deposited on 7th June, 2007. The borrower voluntarily has done this and after it is stated that the property does not belong to the Director Unnikrishnan but to the borrower company M/s. Vibgyor Texotech Ltd. There are written confirmations and balance confirmation letters as well. In the circumstances, there could not have been any leave and licence agreement and this is nothing but an attempt to defeat the proceedings which have culminated in issuance of the notice under section 14 of the SARFAESI Act. The proceedings reached finality and it was pointed out that the borrower company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts could have been brought to the notice of the officials and while executing the notice or enforcing it, that third party could have and if genuinely apprehensive, pointed out to these officials and the Police machinery as well that it has nothing to do with the transactions between the bank and the borrower and are put in possession under a valid and legal document. That third party could have adopted such proceedings as are permissible in law. It is not necessary for the petitioners to have come to the aid and assistance of such third party. Prima facie we find much substance in the contentions of Shri Walve that this petition is a gross abuse of the process of the Court and equally the order passed by this Court has been then utilised to thwart the remedies available to the bank. Further, this Court's process is used to obstruct and interfere with the powers of the statutory authorities under the Securitisation Act (SARFAESI). 9. We also find that in the Memo of this petition itself it has been pointed out that the petitioner has availed of facilities and credit facilities specially from SBI. That is apparent from paragraphs 2 and 3 of the Memo of this petition. From pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable legal grounds, including those set out in this Writ Petition. It is apparent that the petitioner is fully aware of this position and in law. The petitioner is also aware of the position that once the Securitisation Appeal has been preferred and is pending, then, a refusal of any interim protection or order or relief therein is appealable before the DRAT and that is how the petitioner has approached the DRAT. Equally, it can point out that the Application No.408 of 2011 filed under section 14 of the SARFAESI Act before the District Magistrate / Collector should not be permitted to be proceeded with and the petitioner should not be dispossessed from the immovable property, if in possession. The petitioner is thus completely aware of all the remedies and that are available in law. It is clear from the annexures to this petition and particularly the orders passed by DRT that the bank argued before it that the property is in possession of the tenants / third party and not in possession of the petitioner-company. The bank pointed out that interlocutory applications have been filed in the Securitisation Appeal No.4 of 2012 and numbers of the same are set out at page 153 of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for at this stage. The proceedings before the DRT and the DRAT are yet to conclude. All adverse orders therein are capable of being challenged and after the matter reaches the higher courts, it is open for the petitioner to argue and raise all the legal and constitutional issues. Presently, the whole intent and purpose was to somehow or the other avoid handing over of possession of the secured asset. In order to achieve that, the petitioner firstly moved this Court and placed before the Court some facts pertaining to a third party being in possession. That third party then promptly files an application for interim relief in the pending suit in the court at Vasai against the Director of the petitioner and others. That Director had already filed an independent proceeding against the Securitisation notice in the DRT, Pune. The petitioner's appeal / Securitisation Appeal No.4 of 2012 is pending and all this was known to the petitioner. Yet, after inducting a alleged third party in possession and to facilitate it, such collusive proceedings are brought before this Court. In the present circumstances really the protection given by this Court is completely misused and to institute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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