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Judgment
Ranjit Singh, J
After issuing notice under Section 13(2) of the SARFAESI Act, Syndicate Bank had given sufficient opportunity to the respondent herein to revive the account and to deposit the overdue amount. When the respondent failed to do so, the Bank took physical possession of the property A-8, Swasthya Vihar, Delhi on 23.7.2013. When the Bank issued a sale notice, the respondent filed this S.A. Vide its order dated 11.2.2014, the Tribunal had initially stayed the auction on the condition that respondent would regularize its account within 30 days. The respondent had deposited Rs. 1 crore by selling one property when the order dated 11.2.2014 was passed in this S.A. This S.A. was finally disposed of on 18.7.2014 rejecting the prayer of the respondent to regularize the account, but, still, giving them 30 days' time to clear the entire dues failing which the Bank was given liberty to proceed further under the SARFAESI Act.
Aggrieved against this order, the appellant had filed an appeal before this Tribunal, which came to be disposed of on 7.4.2015. In fact, when this appeal had come up for hearing on 13.1.2015, notice on the application seeking condonation of delay was issued for 26.2.2015. The respondent herein filed an application for hearing the appeal early, which was dismissed on 2.2.2015. Aggrieved against the same, the respondent had filed a Writ Petition before the High Court. This Writ Petition was disposed of on 11.2.2015. The Hon'ble High Court had stayed auction of the property which was fixed on 12.2.2015 with condition requiring the respondent to deposit Rs. 8 lacs within 24 hours. In fact, the respondent had stated before the Hon'ble High Court that it was willing to pay the entire dues demanded on or before 31.3.2015. In turn, the Counsel for the appellant-Bank had stated before the High Court that the dues against the respondent were to the tune of Rs. 2.25 crores and accordingly had accepted the offer made by the respondent. The High Court then directed that the respondent shall abide by his statement made in the Court to the effect that it would pay the amount of Rs. 2.25 crores on or before 31.3.2015 either in lump sum or in instalments, as the case may be. The Tribunal below was directed to consider the submissions of the parties with respect of the correctness of the calculations made by them to see if the amount due for recovery was Rs. 2.25 crores.
Taking note of the High Court order, the appeal which was pending before this Tribunal was disposed of as having rendered infructuous. Even on that date, the Counsel for the appellant had pointed out that the respondent-borrower had violated its undertaking given before the High Court regarding deposit of the amount by 31.3.2015.
While entertaining an IA in a disposed of SA, the Tribunal below, vide its order dated 25.6.2015, has restrained the appellant from selling the property in question subject to deposit of Rs. 1 crore by the respondent within six months through six equal monthly instalments. Out of this, first instalment was directed to be deposited on or before 30.6.2015 failing which the appellant was given liberty to proceed further in accordance with law. Aggrieved against this order, the appellant has filed the present appeal. The grievance now accordingly is that the Tribunal below would not have any jurisdiction to grant time of six months to the respondent to pay the dues in instalments as directed in the impugned order.
Notice in this appeal was issued. The respondent-borrower has filed reply. Even on 9.11.2015, this appeal was adjourned for hearing on the request made by the respondent appearing in person subject to payment of Rs. 1,000/- as costs. In fact, this respondent had also filed a separate appeal to impugn another order dated 24.9.2015 whereby its prayer for extension of time for making the payment of the balance amount in 12 monthly instalments and for restoration of the possession of second floor of the property has been rejected. Even the application seeking review of this order was rejected by the Tribunal below by imposing a costs of Rs. 10,000. It is observed by the Tribunal below that the respondent had availed time of 11/2 year, but still has not paid dues of the appellant. Vide separate order of even date, the appeal filed by the respondent against these orders has been rejected on the ground that despite opportunity the appellant (respondent herein) has failed to deposit the requisite Court fee.
The appellant appearing in person, who had appeared in his appeal filed against these orders, had also prayed for adjournment stating that the proposal for settlement is under consideration. The Counsel for the appellant states that no proposal for settlement is under consideration. The appeal/Inward No. 640/2015 filed by the respondent herein accordingly has been dismissed vide separate order.
In my view, the impugned order passed by the Tribunal cannot be sustained. The respondent-borrower had clearly undertaken before the High Court that he will discharge the liability of Rs. 2.25 crores on or before 31.3.2015. The Tribunal below was only required to determine whether this amount was due or not on the basis of calculations. The Tribunal below, in my view, is not justified in granting six months time to the respondent to deposit Rs. 1 crore that, too, in six equal monthly instalments. This direction would clearly run contrary to the order pass by the High Court where the respondent himself had undertaken to make this deposit on or before 31.3.2015. Not only that, the respondent-borrower has moved another application as can be seen from the connected appeal praying for further extension of time for one year to make this deposit which application has rightly been rejected by the Tribunal below. The Tribunal below was also required to consider whether the respondent had any right or justification to move any application in a disposed of S.A. At the most, the Tribunal was required to consider the issue in the light of order passed by the High Court only. In view of this, the impugned order passed by the Tribunal below cannot be sustained and is set aside. The appeal is accordingly allowed leaving the appellant to take further action in accordance with law.