Bank of Baroda vs Manish Jaiswal

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

This appeal has preferred against the order dated 13.12.2022 passed by learned DRT-3, Kolkata in S.A. No. 730 of 2021 wherein learned DRT-3, Kolkata has directed to restore back the possession to the respondent herein. Feeling aggrieved appellant bank has filed present appeal.

Learned counsel for the appellant bank submits that learned DRT has erred in passing the impugned order. It is submitted that there was an interim order passed by the Hon’ble High Court at Calcutta in WPA No. 19170 of 2022 [Manish Jaiswal Vs. Bank of Baroda & Anr.] on 26.08.2022 staying the operation of Section 14 order  passed  by  the  concerned  District  Magistrate  till 30.09.2022 and the writ petition was disposed of on 27.09.2022 extending the interim order till 30.11.2022 with the liberty to the parties to urge the matter before DRT. Learned counsel for the appellant bank further submits that possession was taken on 13.12.2022 when there was no interim order in favour of the present respondent. It is further submitted that learned DRT has not given any reason or ground while passing the impugned order. Learned counsel further submits that respondent was not interested to safeguard his interest since the interim order of the Hon’ble High Court passed on 27.09.2022 was extended till 30.11.2022 and the respondent has moved before DRT by filing I.A. No. 3006 of 2022 in S.A. 730 of 2021 on 22.11.2022 which came up for hearing on 13.12.2022.

Per contra, learned counsel for the respondent submits that despite knowing that the matter is listed for hearing on 13.12.2022, appellant bank hurriedly taken physical possession on the same date. It is submitted that in compliance of the order of the Hon’ble High Court dated 27.09.2022, instant respondent moved learned DRT on 22.11.2022 which was served upon the present appellant bank on 29.11.2022 as per track report and the matter was listed on 13.12.2022, on that date the impugned order was passed. However, despite knowing the fact that an interlocutory application was moved by the instant respondent seeking stay of operation of the order passed by the District Magistrate on 06.04.2022, appellant bank had taken action by depositing money to the concerned police station on 06.12.2022 and on 09.12.2022 requested the Executive Magistrate to grace his presence at the property in dispute on 13.12.2022 for taking over physical possession. It is submitted that appellant bank hurriedly taken physical possession knowing well that the interlocutory application challenging DM order is listed for hearing on that date. Hence, the appellant bank intentionally invited the Executive Magistrate to take over physical possession on 13.12.2022 when the matter was listed for hearing before learned DRT.

Heard learned counsel for the parties and perused records.

As far as factual aspects are concerned Writ Petition was filed before the Hon’ble High Court seeking stay of operation of the DM order as DRT was not functioning and said writ petition was disposed of on 27.09.2022 giving liberty to the parties to urge their grievance before DRT. However, interim order was passed by Hon’ble High Court staying operation of the DM order till 30.11.2022. It is true that interim order passed by the Hon’ble High Court is not in force on 13.12.2022, but the fact remains that an interlocutory application was listed before learned DRT on 13.12.2022 seeking stay of operation of the DM order by virtue of which possession was taken. It is also on record that interlocutory application was moved on 22.11.2022. Notice was sent to the appellant bank which was served on 29.11.2022. Despite this fact, the concerned authorized officer of the bank was hurriedly deposited money before the police authority on 06.12.2022 and sent a letter on 09.12.2022 to the Executive Magistrate requesting his assistance to take over physical possession of the secured property, which is residential one, on 13.12.2022. All was done knowing fully well that matter would be taken up by the learned DRT on 13.12.2022, which shows ill intention of the concerned authorized officer to take over physical possession by any means. Fact remains that on 13.12.2022 when the matter was taken up by learned DRT physical possession was taken. If the bank was so eager to take possession it would have been just and proper for the bank to inform the proposed action to the learned DRT or request concerned Executive Magistrate to postpone the matter for a day so that matter could be heard by the learned DRT and necessary order be passed whatsoever it may be. But the concerned authorized officer hurriedly took physical possession of the secured asset which shows his ill intention. In such circumstances there is no illegality in the impugned order passed by the learned DRT wherein direction was given to restore back possession within three days.

In view of the above instant appeal lacks merit and it is liable to be dismissed.

ORDER

Appeal is dismissed. Appellant bank is directed to comply with the impugned order of the learned DRT passed on 13.12.2022 within a week from today. However, learned DRT would be at liberty to hear the SA and dispose of the same in accordance with law. No costs.

File be consigned to record room.

Copy of the order be supplied to the appellant and the respondent and a copy be also forwarded to the concerned DRT.

Copy of the judgement/Final Order be uploaded in the Tribunal’s website.

Order dictated, signed and pronounced by me in the open Court on this the 11th day of January, 2023.