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Judgment
S.N.H. Zaidi, J
This application has been filed by the applicant under Section 20(1) of the RDDBFI Act read with Rule 18 of the DRT (Procedure) Rules seeking permission to file the appeal. The respondent Bank has opposed the application by filing reply to it.
The submissions of Mr. Mudit Sharma appearing for the applicant are that the applicant being aggrieved by an order of the appointment of the Receiver for taking the possession/custody of the property bearing Plot No. 9, Sector-20, Part II, Dwarka, Now Delhi, hereinafter referred to as the property in question, has filed an appeal against the order dated 3.4.2012 of DRT-II, Delhi passed on I.A. No. 246/2012 filed in O.A. No. 7/2010; that respondent company had entered into a collaboration agreement with the applicant on 28.1.2008 for the development and construction of a commercial complex over that plot after obtaining a no-objection certificate (NOC) from respondent No. 1 Bank and the applicant paid a sum of Rs. 10 crores to them and came in possession over the property in question which remained with it for several years but the Receiver has dispossessed it on the strength of the order impugned; that the applicant was not made a party to the O.A. filed against the borrowers by the Bank but since it has a legal interest in the property in question and its rights have been adversely affected by the order impugned, it is an aggrieved person and has a right to file the appeal. In support of his contentions, Mr. Sharma has relied upon the judgments of the Supreme Court in Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. & Ors., (1997) 4 SCC 452 as well as of the Gujarat High Court in Lalbhai Trading Company v. Union of India & Ors. (2006) 1 GLR 497.
Mr. R.S. Raju has submitted on behalf of the respondent No. 1 that the Bank has filed an O.A. for the recovery of Rs. 24.17 crores against the borrowers which is still pending and in that O.A. the applicant had moved an application for its impleadment on the basis of the alleged collaboration agreement dated 20.1.2008 but the said application was disallowed by the Tribunal below and the appeal filed against the order of the DRT had also been dismissed by this Tribunal on 9.1.2012 with the observation that no title or ownership right qua the property in question had accrued to the applicant on the basis of the Collaboration agreement; that the said order of this Tribunal has not been assailed before any Court, as such it has attained finality qua the alleged rights of the applicant in the property in question; that the factum of mortgage of the property in question by the borrowers in favour of the Bank is not in dispute; that the Receiver has been appointed on the application of the borrowers for the safe custody and control of the property in question; that the Tribunal below has rightly exorcised its jurisdiction under Section 19(18) of the RDDBFI Act in appointing the Receiver and since the Receiver has taken the possession of the property in question in accordance with law, the applicant cannot be said to be an aggrieved person qua it and it has no right to file the appeal qua the order of appointment of the Receiver.
Mr. Pallav Saxena, the Counsel for the borrowers, has contended that the question of the alleged title or interest of the applicant in the property in question had already been considered by this Tribunal in Appeal No. 448/2011 filed by the applicant against the dismissal order of its impleadment application and since the order dated 9.1.2012 of this Tribunal dismissing that appeal has become final, the applicant cannot be allowed to re-agitate the matter on the basis of the alleged collaboration agreement by permitting him to file the appeal and the alleged plea of the applicant qua its title/interest in the property in question is barred by the principles of res judicata. It was also contended by him that the principle of res judicata applies not only in respect of separate proceeding taut also at the subsequent stage of the same proceeding. Mr. Saxena has placed reliance upon the judgments in M. Nagabhushana v. State of Karnataka & Ors (2011) 3 SCC 408, Barkat Ali & Anr. v. Badrinarain (dead) by LRs., III (2008) CLT 248 (SC) : VI (2008) SLT 414 : (2008) 4 SCC 615 and Uttar Pradesh Power Corporation Limited & Ors. v. National Thermal Power Corporation Limited & Ors., I (2012) CLT 100 (SC) : (2009) 6 SCC 235 in support of his contentions.
The record would reveal that since the applicant was not a party to the O.A., it had moved an application for its impleadment but the same was dismissed up to the appellate stage and the order of the appellate tribunal has become final and now the appeal has been sought to be filed by the applicant against the order of appointment of the Receiver. Section 20 of the RDDBFI Act empowers any person who is aggrieved by an order of the DRT to file an appeal before the appellate Tribunal. A question, therefore, arises as to whether the applicant is a person aggrieved qua the order impugned?
The Supreme Court was called upon in Northern Plastics Ltd. v. Hindustan Photo Films Mfg. Co. Ltd. & Ors. (supra) to consider the question whether within the meaning of Sections 128 and 129-A or the Customs Act, 1962 and Sections 35 and 35-B of the Central Excise Act, 1944 a business competitor as well as Union of India could be termed to be a 'person aggrieved' so as to entitle them to file appeals before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) and the Hon'ble Court has observed in Para 10 of the judgment that:
...But in the entire context of the statutory scheme especially Sub-section (3) of Section 129-A it has to be held that only the parties to the proceedings before the adjudicating authority-Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under Section 122 can prefer such an appeal only when directed by the Board under Section 129-D(1) and not otherwise. It is easy to visualize that even a third patty may get legitimately aggrieved by the order of the Collector of Customs being the adjudicating authority if it is contended by such a third party that the goods imported really belonged to it and not to the purported importer or that he had financed the same and, therefore, In substance he was interested in the goods and consequently the release order in favour of the purported importer was prone to create a legal injury to such a third party which is not actually arraigned as a party before the adjudicating authority and was not heard by it. Under such circumstances such a third party might perhaps be treated to be legally aggrieved by the order of the Collector of Customs as an adjudicating authority and may legitimately prefer an appeal to the CEGAT as a 'person aggrieved'. That is the reason why the Legislature in its wisdom has used the phrase 'any person aggrieved' by the order of the Collector of Customs as an adjudicating authority in Section 129-A(1). But in order to earn a locus standi as "person aggrieved" other than the arraigned party before the Collector of Customs as an adjudicating authority it must be shown that such a person aggrieved being third party has a direct legal interest in the goods involved in the adjudication process. It cannot be d general public interest or interest of a business rival as is being projected by the contesting respondents before us....
In Lalbhai Trading Company v. Union of India & Ors. (supra), the Gujarat High Court has also considered the concept of 'aggrieved person' at great length and after discussing a catena of case law has described a 'person aggrieved', in Para 14, as follows:
On a conspectus of the aforesaid case law it becomes clear that the words 'person aggrieved' are required to be ascertained with reference to the purpose of the provisions of the statute in which they occur. The meaning may Vary according to the context of the statute. However, one thing is certain, a person can be said to be aggrieved if a legal burden is imposed on him which may be in the form of being denied or deprived of something to which such person is legally entitled.
(a) The meaning of the words 'aggrieved person' cannot be read as an expression which is rigid, exact and comprehensive. Apart from the content and intent of the statute, the specific circumstances of the case, the nature and extent of the person's interest, and the nature and extent of the prejudice or injury suffered by the person are relevant factors.
(b) The duty of the Court is to read into the statute, a duty to act fairly in accordance with the principles of natural justice. If a person suffers a wrong as a result of unfair treatment on the part of the authority, he is a person who has suffered a legal grievance, against whom a decision has been pronounced which decision has either wrongfully deprived him or wrongfully refused him something or wrongfully affected his title to something. In other words, the person must have suffered a legal wrong or injury; the sense, that his interest is prejudicially and directly affected by the act or omission of the authority.
(c) The grievance has to be his own beyond some grievance or inconvenience suffered by him in common with the rest of the public. The test is can the person be said to be entitled to object and be heard by the authority before the authority takes the impugned action.
(d) The person has to be directly and immediately affected. An aggrieved party is one whose personal, pecuniary or property rights are adversely affected by another person's action or by a decree or judgment by a Court.
(e) An appeal can be preferred from every original decree or from every decree passed in appeal. The appellant must be a person aggrieved by a decree nor merely by a finding. The person must be prejudicially or adversely affected by the decree. In other words, when a person is fastened with liability where under his property, of every type, is directly affected. To put it differently is the person, by virtue of the decree, called upon to discharge a pecuniary liability so as to deprive him of his properly. If the answer is yes, he is an aggrieved person.
Having considered the applicant's case in the light of the above propositions of law I am of the considered opinion that the applicant does not appear to be a 'person aggrieved' because he has failed to qualify the test laid down by the Apex Court in Northern Plastics Ltd. (supra) that in order to earn a locus standi as a "person aggrieved" other than the arraigned party before the adjudicating authority, it must be shown that such a person aggrieved being third party has a direct legal interest in the property involved in the adjudication process, as the alleged title/interest of the applicant qua the property in question has already been considered by this Tribunal and it has been held in its order dated 9.1.2012 that he has no legal title or ownership right in the property in question and the said observation has attained the finality. I fully agree with the contention of Mr. Saxena that the applicant cannot be allowed to re-agitate the matter by permitting him to file the appeal on the ground of alleged title/interest and possession by virtue of the said collaboration agreement.
In the case of M. Nagabhushana (supra), the Apex Court in Para 21 of the judgment has referred to the following observation made by its Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, that:
...an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have Litigated and have had decided as incidental to or essentially connected with subject-matter of litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underling Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.
The Supreme Court in the case of Barkat Ali (supra), has held that:
The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage.
In view of the aforesaid legal position, the accompanying appeal also appears to be barred by the principle of res judicata and as such the appellant cannot be allowed to re-agitate the matter by filing the appeal. The application has, therefore, no force and is dismissed accordingly.
Copy of this order be furnished to the parties as per law.