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Judgment
P.K. Bhasin, J
Respondents have not brought any payment even today as was undertaken by them on the last date and considering their genuine desire to make the payment, as was being represented by the respondents, even the Counsel for the Bank had not opposed the grant of time till today for making payment of Rs. 8.50 lacs. Counsel for the Bank has submitted that the modus operandi of the respondents has been to get time even from the DRT by making false pleas that they were interested to clear the dues but every time they have been dishonouring their commitments made before the DRT still the DRT has been showing indulgence to them even after disposal of the S.A. on 6.11.2015 and when DRT had stated in its order dated 23.12.2015 that no further application shall be entertained on any pretext but still DRT has been entertaining application after application. Learned Counsel for the Bank has drawn my attention to the various orders passed by the DRT. Order dated 3.8.2015 reads as under:
"1. The matter is listed today for hearing on the issue of interim relief.
The present Securitisation Application has been filed by the applicant against the action of the respondent Bank under the SARFAESI Act, 2002 in respect of the property bearing Flat No. A-18, Plot No. 19, Shastri Nagar, New Delhi (hereinafter refer as property in question) the learned Counsel for the applicant submits that the applicant is ready to deposit the overdue amount within three months through two instalments as an amount of Rs. 1,06,75,384/- is claimed by the respondent Bank as on 13.2.2015. He further prayed for restraining the respondent Bank from taking physical possession in respect of the property in question.
The learned Counsel for the Bank vehemently opposed granting any interim relief to the applicant herein stating that this shall adversely affect the legitimate recovery of the respondent Bank
Heard both the parties and perused the records, the respondent Bank/Receiver is hereby restrained from taking the physical possession of the property in question under the SARFAESI Act, 2002 subject to deposit of overdue amount within three months through two equal instalments with upto date instalments by the applicant with an affidavit-cum-under-taking within three days with advance copy of the same to the respondent Bank that she shall make payment of above amounts accordingly. After deposit of the above said amount by the applicant, the respondent Bank may pass speaking order whether the account can be regularized or not.
It is made clear that default on the part of the applicant at any stage will entitle the respondent Bank to proceed further in accordance with law without seeking further clarification in this regard.
The learned Counsel for respondent Bank is directed to file reply to the S.A. within four weeks with advance copy of the same upon the applicant. Thereafter rejoinder, if any, may be filed within next four weeks.
Matter be listed on 19.10.2015 for further proceedings."
Order dated 19.10.2015 reads as under:
"The learned Counsel for the applicant submits that the applicant could not comply with the direction of this Tribunal due to certain difficulties and he has also prayed for extending the time to comply with the direction of this Tribunal. He further submits that in order to show their bona fide he has today, handed over two post dated cheques for a total sum of Rs. 10.00 lacs (one cheque of Rs. 5.00 lacs of 2.11.2015 and another cheque of Rs. 5.00 lacs of 2.12.2015) to the learned Counsel for the respondent Bank.
On the other hand the learned Counsel for the respondent Bank has opposed for extending further time.
After hearing the learned Counsel for both the parties and in the interest of justice, time is extending till December, 2015 to comply with the direction of this Tribunal.
Let the matter be listed on 6.11.2015 for further proceedings "
Final order dated 6.11.2015 as under:
"1. I have gone through the contents of the securitisation application. This is an application under Section 17 of the Securitization of the Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to in short as "SARFAESI Act") whereby the applicant has prayed that the impugned SARFAESI measures taken by the Bank may be quashed.
It has been prayed that the respondent Bank be restrained from taking any measure against the property bearing Flat No. 18, Plot No. 19, Shastri Nagar, New Delhi (hereinafter refer as property in question).
The learned Counsel for applicant submits that as per the direction of this Tribunal he has deposited a sum of Rs. 5.00 lacs with the Bank and given another cheque of Rs. 5.00 lacs which will encash on 1.12.2015.
The learned Counsel for applicant further submits that the applicant ready and willing to regularize his account by paying the overdue amount of the Bank.
On the other hand, the learned Counsel for respondent Bank vehemently opposed to grant any relief to the applicant and submitted that the cheque of Rs. 5.00 lacs given by the applicant was dishonoured thereafter the applicant has deposited the same in cash with the Bank.
After hearing both sides at length and perusing the records, this Tribunal is of the view that the purpose of enacting the SARFAESI Act, 2002 is speedy recovery of the Banks/financial institutions which is being achieved here as the applicant has come forward to pay the overdue amount of the Bank to regularise his account.
In view of the above, the applicant is hereby directed to deposit a sum of Rs. 10.00 lacs within 30 days with the respondent Bank and thereafter approach to the Bank for regularizing his account.
After receiving the entire overdue amount, the respondent Bank may consider the applicant's proposal for regularizing his account by passing the speaking order in view of the judgment passed by Hon'ble Apex Court in the matter of "PSB v. Sardar Associates".
It is made clear that in case of single default, the respondent Bank shall be at liberty to take the possession of the property in question through very same receiver in accordance with law.
With the above directions, nothing remains to be decided by this Tribunal in the present securitisation application as the applicant has admitted his liability of debts towards the Bank.
In view of the above, the present S.A. is disposed of.
File be consigned to record."
After disposal of the S.A. the respondents again approached the DRT for condonation of delay in making payment in compliance of the order dated 6.11.2015. That application was rejected vide order dated 17.12.2015 which reads as under:
''The present application has been filed by the securitization applicant praying therein to condone the delay on the part of the applicant to comply with the directions issued vide order dated 6.11.2015 passed by this Tribunal and allow her to make the payment through the modes of monthly instalments to the respondent Bank.
Heard the learned Counsel for the applicant and on perusal of the records it is observed by this Tribunal that the applicant has not complied with the direction of this Tribunal by depositing the amount with the respondent Bank Hence, in view of the conduct of the applicant, the present application is hereby dismissed at the admission stage.
File be consigned to records."
On 23.12.2015 another order was passed by the DRT which reads as under:
"I.A. No. 2290 of 2015
The present application is filed by the applicant requests for restrain the respondent Bank from taking the possession of the residential property of the applicant.
The learned Counsel appears for applicant submits that he has given a cheque of Rs. 5.00 lacs dated 30.12.2015 and prayer that Bank may restrained till that date.
On the other hand, the learned Counsel for respondent Bank vehemently opposed to grant any relief to the applicant as till date the applicant has not deposit the single penny.
After hearing both sides at length and perusing the records, this Tribunal is of the view as the applicant has come forward to pay the dues of the Bank; one opportunity should be granted to the applicant to pay the dues of the Bank.
In view of the above, I hereby directed the applicant to deposit a sum of Rs. 10.00 lacs on or before 31.12.2015 failing which the Bank shall be at liberty to proceed further in accordance with law and take the physical possession of the property in question through very same Receiver.
Till then, the Court Receiver is hereby restrained from taking the possession of the property in question.
It is made clear that no further application shall be entertained by this Tribunal on any pretext.
With the above direction the present I.A. is disposed of.
File be consigned to record "
On 18.2.2016 yet another application was entertained by the DRT filed by the respondents following order was passed:
"I.A. No. 295 of 2015
The present application is filed by the applicant to restrain the Court receiver from taking physical possession of the property on 18.2.2015 at 12.30 p.m.
The learned Counsel for applicant submits that the applicant has complied with the earlier direction of the Tribunal and deposited a sum of Rs. 10.00 lacs with the Bank and want to regularize her account therefore prayer that Court Receiver may be restrained from taking the possession of the property in question.
On the other hand, the learned Counsel for respondent Bank vehemently opposed to grant any relief to the applicant.
After hearing both sides at length and perusing the records, the applicant is hereby directed to deposit a sum of Rs. 5.00 lacs within a period of three months apart from the monthly EMI and they may approach to the respondent Bank for regularization her account and Bank may consider the same by passing speaking order before the next date of hearing
Till then, the Court Receiver is hereby restrained from the taking the physical possession of the property in question
In the meantime, the respondent Bank is directed to file the reply to the present I.A. before the next date of hearing. All other question shall be decided on the next date of hearing.
The matter be listed on 1.4.2016 for further proceedings."
The Bank this time lost the patience and filed this appeal against the said order dated 18.2.2016.
Undisputedly, the respondents are defaulters and they have not disputed their liability of over a crore of rupees as was being claimed by the Bank but have simply been seeking time from DRT to clear the Bank's dues which were in arrears to have their account regularized but they have not been honouring their commitments. Even before this Tribunal they had offered to make the payment of Rs. 17.15 lacs to the Bank to clear the arrears of the EMIs and upon that offer having been made, the Bank had agreed to favourably consider to regularise respondents account. In fact, they have even misrepresented to DRT on 18.2.2016 when the impugned order was passed that they had made the payment of Rs. 10.00 lacs, while in fact that payment was not made within the period which was granted by the DRT and this facts is not being disputed even today by the Counsel for the respondents.
In view of the aforesaid conduct of the respondents they have disentitled themselves from getting any further indulgence from this Tribunal.
This appeal is now disposed of with clearance to the appellant Bank to go ahead with its proposed action under SARFAESI Act which the DRT had been restraining from time-to-time despite respondents not honouring their commitments. At this stage, Counsel for the respondents has submitted that in case the respondents approach the Bank even now for regularisation of their account the Bank may be asked to sympathetically consider their request. As far as this submission is considered, this Tribunal has nothing to comment but if, at all, respondents decide to approach the Bank it would be for the Bank to take any decision.
A copy of this order be given dasti the parties.
Record of the DRT be sent back.