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TMI Blog2017 (12) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... eded with the matter as if it is a regular appeal arising out of the award passed by the MSMEDF Council and commenting upon the conduct of the Bank in not seriously pursuing the matter in challenging the award. The High Court did not consider the earlier proceedings before DRT, DRAT and before the High Court except merely referring to certain proceedings before DRT and DRAT. The High Court did not consider various orders passed by DRT and DRAT and the conduct of the parties who have been vigorously pursuing the matter before DRT, Recovery Officer and DRAT. The High Court also did not keep in view that the parties were bound by the earlier orders passed by DRT and Recovery Officer which clearly held that charges towards security services are payable only by the auction purchasers. The impugned order passed by the High Court thus suffers from serious infirmity and is liable to be set aside. Pursuant to the order dated 19.03.2013 passed by the High Court, an amount of ₹ 1,93,22,590/- was deposited by the appellant Bank. By an order dated 30.03.2016 passed by DRT, Pune, respondent No.1 has withdrawn an amount of ₹ 1,22,00,000/- (Rs.1,00,00,000/- plus accrued interest). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same date i.e. 13.11.2006 directed respondent No. 1 to hand over the possession of the subject property to the auction purchasers. 3. There was then a dispute between the appellant Bank and M/s Sona Aluminium Finishers (P) Ltd. - Certificate Debtor and the same came to be compromised; however the same failed due to non-compliance of the terms and conditions of the compromise. Appellant Bank sent letter dated 04.05.2007 informing the first respondent that they had decided to discharge the Court Commissioner with effect from 08.05.2007 and the Bank also paid the charges of respondent No. 1 up to 08.05.2007. However, the Recovery Officer by his order dated 12.06.2007 directed the appellant Bank to continue to pay the charges to respondent No. 1 which was challenged by the appellant Bank before the Presiding Officer, DRT, Pune by preferring Appeal No. 25 of 2007. In Appeal No. 25 of 2007, v ide order dated 24.07.2008, DRT set aside the order of the Recovery Officer and directed the first respondent to take steps for recovery of its charges from the auction purchasers from 08.05.2007. Be it noted, respondent No. 1 had not challenged the order dated 24.07.2008; but filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) MSMED Act, 2006 was specially enacted to deal with dispute of delayed payments to service providers and the MSMEDF Council had jurisdiction to adjudicate the dispute; and (iii) Bank has not taken any step to take possession from Court Commissioner after paying the charges; but it has simply refused to pay the charges and dragged the litigation. Being aggrieved, the appellant Bank preferred this appeal. 5. We have heard at length Mr. Dushyant Dave, learned senior counsel appearing for the appellant Bank and Mr. Prakash Wamanrao Yadav-the first respondent who appeared in-person. We have carefully considered the rival contentions and perused the impugned judgment and the materials on record. 6. Upon consideration of the rival contentions, the following points arise for consideration in this appeal:- i. When the obligation of the appellant Bank to pay the charges expired on 30.11.2006, when the physical possession of the subject property was handed over to the auction purchasers and when the order dated 24.07.2008 of Debt Recovery Appellate Tribunal, Pune has attained finality, can the first respondent claim charges for security services from the appellant Bank? ii. Whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the first respondent on 04.05.2007 calling upon him to get his bill cleared for ₹ 30,866/- being the charges for security services at Pavitra Hall up to 08.05.2007. In the said communication, Bank had made it clear that .....no further payment will be made to you (Yadav Consultancy) by the Bank..... ; however, the Recovery Officer by his letter dated 12.06.2007 directed the appellant Bank to continue to pay the charges for security services to the first respondent. Appellant Bank challenged the said order of Recovery Officer dated 12.06.2007 before DRT in Appeal No. 25 of 2007. DRT set aside the said order of the Recovery Officer and directed the Recovery Officer to recover Court Commissioner charges from 08.05.2007 from the auction purchasers. We may usefully refer to the said order of the DRT dated 24.07.2008 which reads as under:- .......The Court Commissioner was appointed at the instance of the Recovery Officer and the Recovery Officer has wrongly saddled the appellant to pay the charges. The Court Commissioner should not suffer in the present proceeding and, therefore, Recovery Officer is directed to recover Court Commissioner charges from 08.05.2007 till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtherance of their private arrangement, particularly in light of Exh 225 of the Auction Purchaser. The term Court Commissioner as used by CH in its application Exh 308 therefore is a misnomer. The said Agency from 13.11.2006 does not appear to have rendered services to the Auction Purchasers as Court Commissioner but as a private agency............ The order of the Hon'ble PO dated 24.07.2008, passed in Misc. Civil Appeal 25/2007 whereby, it appears, relief is granted to the Auction Purchasers, who have been directed to pay the Court Commissioner charges w.e.f. 08.05.2007. Therefore, I am not required to go into the said aspects again, as the same having reached finality, as from the available record and papers, no appeal appears to be filed against the said order dated 24.07.2008.... The above order of the Recovery Officer makes it clear that the continuance of respondent No. 1 for safeguarding the auctioned property was solely on behalf of auction purchasers and the first respondent's duty as Court Commissioner had ceased to exist on 13.11.2006. After 13.11.2006 or at least after 24.07.2008 (Order of DRT), for the services of respondent No. 1, if any, were av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by respondent No.1. As per Section 5 of the RDDBFI Act, the Debt Recovery Tribunal is headed by the Presiding Officer who is or has been or is qualified to be a District Judge. Likewise, as per Section 10 of the said Act, the Appellate Tribunal is headed by the Chairperson who is or has been or is qualified to be a judge of a High Court. DRT and DRAT are not merely having the trappings of the courts but also vested with the powers of ordinary civil court including the power to summon and examine the witnesses on oath, the power to order inspection of the documents etc. When the proceedings were lawfully conducted before the quasi-judicial authorities like DRT and DRAT, having trappings of the civil court, MSMEDF Council had no jurisdiction to entertain the application filed by the first respondent; more so, when the orders passed by the DRT were accepted and acted upon by respondent No.1. The High Court did not consider the question of lack of jurisdiction of MSMEDF Council. 13. The High Court mainly seems to have proceeded with the matter as if it is a regular appeal arising out of the award passed by the MSMEDF Council and commenting upon the conduct of the Bank in not seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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