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TMI Blog2022 (2) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai was oblivious of the sale notice whereby the claim as determined by him is a sum of Rs.270,28,51,260/- (Rs.270.29 crores). Incidentally, we may also note that the said sale proclamation, which is well within the knowledge of the petitioners, is not challenged before any forum till date. Apparently, on one hand Recovery Officer issued a sale notice whereby the claim as determined by him is a sum of Rs.270.29 crores while on the other he blindly accepted the submissions of the petitioners that the claim is only Rs.5 crores. This is a classic case of approbation and reprobation. As a matter of fact, the amount due and determined by the DRT is in excess of Rs.2,70,28,51,260/- and 25% of such sum was required to be deposited by the petitioners. The petitioners are knowingly and deliberately flying against all the material on record. It appears to be no more than a brazen exercise, once again to frustrate the auction process. Petition dismissed. - DIPANKAR DATTA, CJ AND V. G. BISHT J. Mr. Rohit Gupta i/b. V. Deshpande Co., Advocate for the Petitioner in Writ Petition (L) No.46 of 2022 and for the Respondent No.2 in Writ Petition No.2537 of 2021. Mr. Gautam Ankhad a/w. Mr. Aditya M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 4 and 6 to 10 are mortgagors / guarantors to the credit facilities granted, sanctioned and disbursed to respondent no.5. 5 In view of default committed by Beautiful Group, OBC filed different original applications before the DRT. Simultaneously, OBC took measures under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter the SARFAESI Act for short) in respect of secured assets. By an order and judgment dated 24th July 2006, the original application filed against the respondent no.5 (in liquidation) and its guarantors being Original Application No.303 of 2002 was allowed and accordingly, recovery proceedings commenced. The said order and judgment was challenged by borrower before the DRAT. They also challenged the measures under the SARFAESI Act by filing applications under Section 17 of the SARFAESI Act before the DRT as well as by way of appeals under Section 18 before the DRAT. 6 According to petitioners in or around 2013, the promoters/ guarantors of Beautiful Group approached the petitioners and indicated their desire to restructure its debts and to take over the debts of Beautiful Group from OBC. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 4 by taking shelter of order dated 2nd December 2021 in Writ Petition (L) No.24293 of 2021 deposited a sum of Rs.1.25 crores in DRAT in pending appeal (Appeal (Diary) No.369 of 2021) towards 25% of its alleged outstanding liability and also filed pursis before the respondent no.2 seeking stay of the sale scheduled on 27th December 2021. The respondent no.2 proceeded to stay the sale on the ground that respondent nos.3 and 4 have deposited 25% of their outstanding liability. According to the petitioners, respondent no.2 construed that respondent no.1 has determined the amount due and payable by the respondent nos.3 and 4 and has quantified the pre-deposit amount and accepted Rs.1.25 crores as pre-deposit, which was against the terms and conditions of public notice for sale settled by respondent no.2 indicating the outstanding amount as Rs.2,70,28,51,260/-. Although the petitioners pointed out this mistake by filing a praecipe, yet the respondent no.2 stayed the process of sale scheduled on 27th December 2021. Hence, the petition. 11 The affidavit-in-reply filed by the respondent nos.3 and 4 is on record. According to them the original order and decree of the DRT dated 24th Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailure of respondent no.1 to appreciate that the respondent nos.3 and 4 had completely and totally misinterpreted the order dated 2nd December 2021 passed by this Court in Writ Petition (L) No. 24293 of 2021. According to the learned counsel, the respondent no.1 ought not to have accepted the sum of Rs.1.25 crores as 25% of Rs.5 crores as deposited by the respondent nos.3 and 4 without reading the impugned order or without hearing the petitioners with respect to the amount due and payable by the respondents herein. Rather, the respondent no.1 ought to have checked as to what was the amount claimed by the petitioners and also the amount as determined by the DRT before accepting the same as pre-deposit against the appeal. 17 Assailing further the order of the respondent no.2, the learned counsel pointed out that the respondent no.2 did not keep in mind that he himself had issued the said proclamation for sale of the flat wherein the amount due as on the date of the sale is Rs.2,70,28,51,260/- and 25% of the said amount would come to more than Rs.67.57 crores. The impugned orders, needless to say, being perverse orders, appear to have been passed in great haste which have caused undue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 17 before the DRT as well as by way of an appeal under Section 18 before the DRAT. 21 Again, there is no dispute to the fact that the promoters and guarantors of Beautiful Group approached the petitioners as they wanted to restructure their debts and therefore urged the petitioners to take over the debts of Beautiful Group from OBC. The petitioners, on their part, approached the OBC and offered to take over the debts of Beautiful Group by way of assignment. Accordingly, Deed of Assignment dated 30th September 2013 was executed between the OBC and the petitioners where by the debts of Beautiful Group along with its underlying securities were assigned in favour of the petitioners. 22 In the light of said assignment, the petitioners and respondent nos.3 to 10 arrived at a settlement and executed consent terms dated 1st October 2013 which was filed before the DRAT in pending appeals. The said consent terms are very much on record. It is pertinent to note that the respondents inter alia agreed and undertook that in the event of default, the petitioners shall be entitled to proceed with recovery of entire decreetal amount and that the Recovery Certificate can be executed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for vacating the Flat No.37. However, it seems that the said petitioner was having something else in her mind. Instead of complying the minutes of the order executed before this Court on 6th July 2017, the petitioner Reshma R. Mehta filed Special Leave Petition against the order dated 5th July 2017 passed by this Court. The Hon'ble Apex Court, however, did not find any merit in the Special Leave petition and accordingly dismissed the same. 26 The record then shows that the petitioner Charu K. Mehta again moved a Notice of Motion (L) No.537 of 2017 in Writ Petition No.1800 of 2017 before this Court (Coram : Anoop V. Mohta Bharti Dangre, JJ.) and sought modification of the order dated 5th July 2017 and 6th July 2017 passed by the Division Bench of this Court (Coram : B.R.Gavai R.I.Chagla, JJ.). By order dated 23rd August 2017 the Court directed the Registry to place the matter before the appropriate Bench. Accordingly, the matter again came up before the Bench of Justice B.R.Gavai and Justice R.I.Chagla and vide order dated 28th August 2017 the Court found that no case was made out for invoking review jurisdiction and accordingly was pleased to reject the Notice of Motion. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved, filed another writ petition in this Court being Writ Petition (L) No.12753 of 2021. Simultaneously, they also filed an appeal impugning order of dismissal of Appeal No.6 of 2021 being Appeal (Diary) No.369 of 2021. However, this Court (Coram : A.A.Sayed Madhav Jamdar, JJ.) vide order dated 29th June 2021 dismissed the writ petition with costs of Rs.50,000/- observing that the writ petition was another instance of abuse of process of Court by the petitioners. This order was again challenged by way of special leave petition before the Hon'ble Apex Court and vide order dated 16th July 2021 the Hon'ble Apex Court was pleased to dismiss the special leave petition. 31 From the above chronology of events it does not need much prescience to note that at every stage it has been confirmed that the liability of the petitioners is not restricted to the extent of Rs.5 crores only and it is co-extensive with other respondents. 32 The record would reveal that at last the respondent no.2 proceeded to fix up a sale program in respect of Flat No.37. Surprisingly, the petitioners once again with an intention to obstruct the sale process and jeopardise the recovery of monies of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to the deposit so made by the petitioners before the Registrar of DRAT immediately went on to stay the proposed sale which was to be conducted on 27th December 2021. Even he did not bother to ascertain and verify the exact pre-deposit amount which was to be deposited in consonance with the order dated 2nd December 2021. 36 We are aghast to note that the Recovery Officer, DRT-I, Mumbai was oblivious of the sale notice whereby the claim as determined by him is a sum of Rs.270,28,51,260/- (Rs.270.29 crores). Incidentally, we may also note that the said sale proclamation, which is well within the knowledge of the petitioners, is not challenged before any forum till date. Apparently, on one hand Recovery Officer issued a sale notice whereby the claim as determined by him is a sum of Rs.270.29 crores while on the other he blindly accepted the submissions of the petitioners that the claim is only Rs.5 crores. This is a classic case of approbation and reprobation. As a matter of fact, the amount due and determined by the DRT is in excess of Rs.2,70,28,51,260/- and 25% of such sum was required to be deposited by the petitioners. 37 We are not happy and satisfied with the way the Recove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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