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TMI Blog2022 (5) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... able. Even otherwise, in the facts and circumstances of the case a number of proceedings were initiated by respondent No. 1 by which he has delayed the proceedings initiated by the bank under the SARFAESI Act, and has stalled the recovery proceedings. In spite of the strong observations made by the adjudicating authority in the earlier order produced by the learned Single Judge in his judgment and the strong observations made by the learned Single Judge, the Division Bench was not justified in initially granting an exparte adinterim relief and thereafter, to continue the same on withdrawal of the Letters Patent Appeal. In fact, the Division Bench also did not consider the order of the learned Single Judge on merits but has granted relief even while permitting withdrawal of the appeal. Such conduct on the part of the litigant to once enjoy the fruits of the litigation for number of years, invite the order on merits, which is against him and in the appeal initially after obtaining the exparte adinterim relief and thereafter, having realised that the same would not be sustained, withdrawing the appeal and requesting that observations made by the learned Single Judge while dismissing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pursuant to the assignment of dues, bank issued a demand notice upon the judgment debtor - respondent No. 1 and others under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for a sum of Rs. 27,35,85,200.62/as on 20.06.2011, together with further interest and expenses and costs. Before any further measures under section 13(4) of the SARFAESI Act could be taken by the appellant - bank, respondent No. 1 filed an application under section 17 of the SARFAESI Act before the DRT being Securitisation Application No. 94/2011. Vide order dated 06.01.2015, the Recovery Officer rejected the objections raised by respondent No. 1 and guarantors. The DRT dismissed the Securitisation Application No. 94/2011. 2.3 According to the appellant, the appellant took symbolic possession of the mortgaged property under section 13(4) of the SARFAESI Act on 16.07.2015. Respondent No. 1 and guarantors again raised objections in the recovery proceedings which were rejected by the Recovery Officer vide order dated 06.01.2015. By an order dated 15.07.2016, the Recovery Officer allowed the said application and reviewed/modif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India against the orders passed by the DRT and the orders passed under the SARFAESI Act and Act, 1993, would not be maintainable. That vide order dated 19.04.2021 and during the pendency of the aforesaid writ petition before the High Court, the DRT dismissed the Securitisation Application No. 171/2016 with cost of Rs. 25,000/. The learned Single Judge of the High Court subsequently dismissed the aforesaid Special Civil Application No. 2763/2017 vide detailed judgment and order dated 07.10.2021 with exemplary cost of Rs. 1,00,000/. The learned Single Judge specifically observed that the said proceedings were only preferred by respondent No. 1 to stall the recovery proceedings under the SARFAESI Act. Learned Single Judge also noted that respondent No. 1 remained successful in not paying a single rupee for almost 21 years despite the decree passed by the DRT. 2.6 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, respondent No. 1 preferred Letters Patent Appeal before the Division Bench of the High Court. The Division Bench of the High Court by the impugned exparte adinterim order dated 25.01.2022 granted an exparte order of stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of hearing." 2.8 It appears that having come to know of the present appeal and order dated 22.02.2022, calculatively respondent No. 1 withdrew the aforesaid Letters Patent Appeal with liberty to file appropriate proceedings before the appropriate forum. Respondent No. 1 - original appellant also requested to continue the earlier exparte adinterim order dated 25.01.2022, which as such is the subject matter of the civil appeal arising out of SLP (C) No. 2228/2022, pending before this Court. The Division Bench of the High Court vide impugned order dated 04.03.2022 (impugned order in civil appeal arising out of SLP (C) No. 4724/2022) not only permitted respondent No. 1 to withdraw the Letters Patent Appeal, it also extended the exparte adinterim stay, granted earlier, up to 14th March, 2022. The Division Bench of the High Court reduced the cost imposed by the learned Single Judge from Rs. 1,00,000/to Rs. 25,000/. The Division Bench also passed an order that appropriate forum, which is going to examine the order dated 19.04.2016 passed by the Debts Recovery Tribunal in case No./Securitisation Application No. 171 of 2016, shall deal with the case independently and without being infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 2017 by way of Special Civil Application No. 2763/2017, as such was nothing but an abuse of court process and only with a view to delay the proceedings under the SARFAESI Act, initiated by the appellant - bank, to recover the amount due and payable since 1986. From the material available on record, it is noted that one after another, a number of proceedings were initiated by respondent No. 1. Thus, it can be said that all efforts were made by respondent No. 1 - original appellant to delay the proceedings under the SARFAESI Act, initiated by the bank, to recover the amount due and payable since the year 1986. 4.1 In the year 2017, despite the statutory remedies available under the SARFAESI Act, respondent No. 1 filed a writ petition before the learned Single Judge of the High Court and prayed for the following reliefs: " B) Your Lordships may be pleased to issue writ of mandamus and be pleased to direct the respondent bank not to proceed under the SARFAESI ACT further till they comply with the order passed by the Recovery officer dated 1572016 in R.P No 360 at Annexure K to this petition. C) Your Lordships may be pleased to issue a Writ of certiorari or any other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the DRT made observations in paragraphs 31 to 33, which read as under: " 31. It is worthwhile to mention here that the bank filed the Recovery Proceedings in the year 1986 and now we are in the year 2021. The bank made part recoveries through process of law by sale of hypothecated assets and one property situated in Vatva. The amount recovered is merger amount, as compared to total recoverable dues. On the date of issuance of Demand Notice, bank claimed Rs.27,35,85,200.62 Ps, whereas amount recovered was approximately Rs.9,33,031.20 Ps. The Applicants made every effort to hinder the process of covery of public money. The bank has mentioned details of three assets as securities in the Demand Notice, but has proceeded against one property only. To my opinion, if bank has given details of all the securities, although some of the securities had been sold earlier by the bank through process of Court and has given the credit of so recovered amount in the account of borrower in its ultimate demand made under the Demand Notice, the reference of already sold securities would not render Demand Notice defective. So on that account also, I find no merits in the Securitisation Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the narration of the facts made by the DRT it is clear that the petitioner has only one goal and agenda as not to pay any single rupee after the decree passed by the DRT in the year 2000. The petitioner has remained successful for almost 21 years for not paying any amount of the outstanding dues as per the decree passed by the DRT which has achieved finality. In such circumstances, without adverting to the further facts and taking into consideration the finding of the DRT which is not under challenge and which has achieved finality, the petition is dismissed with cost of Rs. 1 lakh. The amount of cost to be deposited with the Gujarat State Legal Services Authority within a period of four weeks from the date of receipt of this order." 4.3 Against the detailed judgment and order dated 07.10.2021 passed by the learned Single Judge in writ petition bearing Special Civil Application No. 2763/2017 dismissing the writ petition with cost of Rs. 1,00,000/, respondent No. 1 preferred the Letters Patent Appeal before the Division Bench. Despite the strong observations made by the learned Single Judge recorded in detailed judgment and order dated 07.10.2021 in Special Civil Application No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reliefs sought in the main writ petition were the interim order passed by the DRT dated 21.01.2017. It is submitted that one another relief which was sought was to hold and declare that the proceedings initiated by the Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act) are illegal being time barred. It is reported that the proceedings before the DRT are disposed of and the same have been dismissed. It is further submitted that even the order passed by the Recovery officer dated 15.07.2016 upon which the reliance has been placed by the Division Bench of the High Court is as such the subject matter of appeal before DRT filed by the Bank. It is submitted that as held by this Court in the case of Authorized Officer, State Bank of Travancore and Anr. Vs Mathew K.C. (2018) 3 SCC 85 and the recent decision of this Court in CA Nos.257259/ 2022 Phoenix ARC Private Limited Vs. Vishwa Bharati Vidya Mandir & Ors., the writ petition under Article 226 of the Constitution of India against the proceedings initiated under the SARFAESI Act and/or against an interim order shall not be maintainable. It is submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the submissions made by the learned advocates for the respective parties, we pass the following order: [i] The appellant is permitted to withdraw present appeal with a liberty to file appropriate proceedings before the appropriate forum. [ii] Till the next date of hearing, interim relief, if any, granted and which is in existence, is extended upto 14.03.2022. [iii] As far as the cost imposed by the learned Single Judge is concerned, the same is reduced to Rs.25,000/( Rupees Twenty Five Thousand Only) and the same shall be paid to respondent No. 1 by RTGS on or before 11.03.2022. 4. It is needless to say that the appropriate forum, which is going to examine the order dated 19.04.2016 passed by the Debt Recovery Tribunal - 1, Ahmedabad in Case No.S.A.171 of 2016, shall deal with the case independently without being influenced by the observations made by learned Single Judge, vide order dated 07.10.2021 passed in Special Civil Application No. 2763 of 2017 and without being influenced by the order of cost imposed by this Appellate Bench. 5. In view of the order passed in Letters Patent Appeal, present civil application does not survive. Accordingly, the same stands di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the writ petition with cost, the Division Bench ought not to have passed an order nullifying the strong observations made by the learned Single Judge while dismissing the writ petition. In fact, the Division Bench also did not consider the order of the learned Single Judge on merits but has granted relief even while permitting withdrawal of the appeal. Such conduct on the part of the litigant to once enjoy the fruits of the litigation for number of years, invite the order on merits, which is against him and in the appeal initially after obtaining the exparte adinterim relief and thereafter, having realised that the same would not be sustained, withdrawing the appeal and requesting that observations made by the learned Single Judge while dismissing the writ petition may not be considered, cannot be accepted and such conduct reprehensible. 4.9 Once the Division Bench did not interfere with the order passed by the learned Single Judge on merits, thereafter, it was not open for the Division Bench to pass an order permitting the appellant - respondent No. 1 to withdraw the Letters Patent Appeal and also make observations that any of the observations made by the DRT as well as by lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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