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Judgment
In the Original Application(O.A.) No. 142/2013 under Section 19 of The Recovery of Debts Due to Banks and Financial Institutions Act,1993 before DRT-1, Chandigarh, which originally was filed by Allahabad Bank and then upon of the debt in question in favour of the respondent no.1 herein this assignee came to be substituted, an application dated 14.11.2014 for attachment before judgment of certain properties of its defaulting borrowers in Faridabad was filed by respondent no.1, assignee. That application(being I.A.No.1059/2014) was allowed by the learned DRT vide its order dated 23.03.2015 and five properties of the defaulting borrowers, respondents 2 to 4herein(hereinafter to be referred as "Lakhanis'), were attached.
The attachment order dated 23.03.2015 was not challenged before the appellate Tribunal or any other superior forum by any of the defendants in the O.A. However, the appellant bank, which was also impleaded in O.A.No. 142/2013 though only as a proforma defendant no.4, had after more than six months of the passing of the attachment order dated 23.03.2015 moved one applicationdated 16.10.2015(being I.A.No. 1019/2015) application describing the same as an application under Section 152 of the Code of Civil Procedure for correction of the order dated 23.03.2015. It was, inter alia, claimed in the application that the properties attached vide order dated 23.03.2015 could not be attached since the same were already mortgaged by defendant P.D.Lakhani in favour of Bank of India to secure the repayment of loan of over 150 crores of rupees which were lent to Lakhanis by Bank of India in the year 2010and those properties were not the mortgaged properties of Allahabad Bank which had also lent crores of rupees to the same set of borrowers. Allahabad Bank had assigned its debt in favour of respondent no.1 herein which then was pursuing its remedies to recover its dues from its defaulting borrowers and, therefore, those properties could not be attached in the present O.A. and further that......."Any attachment Order thereof would be not only legally unsustainablebut would also aggravatingly "defraud the financial institutions"............." The appellant Bank further claimed in its applicationthat "As a matter of fact, the defendant no.4-Bank has already released/sold three properties out of the above properties, that is to say, Nos. 1332, 1333 & 1334 towards recovery of debt. Further, the Defendant No. 4 Bank has also granted credit facility to the purchaser of the said properties against mortgage thereof in its favour." The prayer made was to clarify in the attachment order in regarding the lien of Bank of India in respect of the properties of P.D.Lakhani, mortgagor of Bank of India(head of Lakhani Group of Companies), impleaded as defendant no.2 in the O.A.
That application of the appellant bank was dismissed by DRT vide impugned order dated 25.11.2016, which gives an extensive background of the case which persuaded the DRT to dismiss I.A. No. 1019/2015 filed by Bank of India is re-produced below:-
"IA 1019 of 2015
This IA has been filed by the Def. No.4 - Bank of India for correction of orderdt. 23.03.2015 passed by this Tribunal by way of indication of fact of mortgage of properties of Sh. P.D. Lakhani(Def. No.2-Guarantor/Mortgagor in the OA), i.e. Plot Nos.1334, 1341, 1333, 132 and 1342, Sector 14, Faridabad, Haryana in favour of Def. No.4 mentioned against Sr. No.1, 2, 4 to 6 vide Schedule-II with IA 1054 of 2014 filed by the Respondent/OA Applicant bank
The counsel for the Applicant/Def.No.4 has stated that the properties mortgaged in favour of Def. No.4 cannot be the subject matter of attachment. In this connection he also pointed out towards the status report filed by Sh. S.K. Gupta, Chief Manager of the Bank stating that the said properties were mortgaged by Sh.PD.Lakhani Def. No.2 (Def.No.3-Smt. SumanLakhani his wife) in captioned OA in favour of the said Applicant/proforma Def.No.4-Bank of India for credit facilities granted in various accounts....................................
The counsel for the Applicant/Def.no.4 further stated that the property Nos.1332, 1333 and 1334 were released by Def. No.4 for sale consideration amount which was partly paid by the purchaser thereof vide detail on record submitted vide diary No.3484 dt.04.04.2016 in compliance of order dt.31.03.2016. For the shortfall in the amount, the same was financed to the purchaser by Def.No.4 and the said properties were re-mortgaged by the purchaser in favour of Def. No.4, the detail of which has been submitted vide diary No.3484 dt.04.04.2016. It has thus been prayed that the properties which were earlier mortgaged by Sh. P.D. Lakhani and after the sale re-mortgaged in favour of Def.no.4 by the purchaser if allowed to continue to be attached at the unlawful request of IARC, the unencumbered nature of the said mortgaged properties would be put in jeopardy to the detriment of Def.No.4 and the said purchaser as Def.No.4-Bank of India is the prime and only mortgagee and IARC has absolutely nothing to do with the same. He further stressed that not only the said properties but also property Nos.1341 and 1342, Sector 14, Faridabad, Haryana are already mortgaged with Def.no.4-Bank in the group accounts.
On the other hand side, counsel for the Res./Application in the OA argued that IA applicant was directed to place on record sale deeds perusal whereof reveals that the properties have been sold by the vendor as free from all encumbrances and does not even refer to any permission having been granted by the IA. Applicant. It means that the IA applicant Bank had already released property prior to sale and is fully covered by order of attachment sought to be reviewed. The counsel further stated that in OA 205 of 2013, the IA applicant is arrayed as def.no.5 and aware of proceedings......................................
The counsel for the Resp./Applicant OA stressed that the IA applicant/Def.No.4 refers to some properties which have been released from mortgage and thus the Applicant could not be permitted to lay claim over any such property over which it does not have mortgagee right.
Heard counsel for the parties and perused the record.
It has been observed that the Applicant is none else but co- defendant No.4 asking for release of certain properties which the Resp./Applicant FI, i.e. IARC (earlier Allahabad Bank) has got attached vide order dt. 23.03.2015 on the ground that these properties which were earlier mortgaged with them, had been released by them and sold by Defendants No.1, 2, 3.
Secondly in the present case, the Applicant Allahabad Bank (substituted by IARCL) has filed one IA No.1059 of 2014 on 05.11.2014 for attachment of certain properties given in Schedule I and II along with Schedule III showing the shares of Defendant including Sh. PD Lakhani.
"Schedule I:
i. Plot No.122, Sector 24, Faridabad
ii. Plot No.131, Sector 24, Faridabad Schedule II:
Plot No.1334, Sector 14, Faridabad
Plot No.1341, Sector 14, Faridabad
Plot No.1128, Sector 15, Faridabad
Plot No.1333, Sector 15, Faridabad
Plot No.1332, Sector 14, Faridabad
Plot No.1342, Sector 14, Faridabad
The detail orders passed on 23.03.2015 is necessary to be reproduced, without which it will be difficult to understand the contentions being decided in this IA.
"23.03.2015
I.A No. 1059 of 2014
This application has been filed by the Applicant for attachment of certain properties before judgment under Order 38 Rule 5 of CPC Section 19(13), 19(25) of RDDB&FI Act. The sole contention of the applicant is that since two mortgaged properties as referred in Schedule I Plot No. 122 and 131 are situated at Sector 24, Faridabad, the aggregate value of which are Rs. 46 Crore whereas the recovery of the bank is to the tune of Rs. 50 crore in this account. The Applicant has further stated that as per the credit information report dt. 31.03.2009 provided by the guarantors/Defendants that Sh. P.D Lakhani is the owner of the property in the shape of immovable as well as shares holding in various companies as per the detail in Schedule III and prayed that the same should be attached.
On the other hand side, counsel for the defendants argues that Moreover, none of the properties mentioned in Schedule- II have been mortgaged with the Applicant Bank and except property at Plot No. 1128 which does not belong to any of the defendants, these properties are mortgaged with Bank of India, Faridabad. The counsel for the defendants have further stated that they have submitted proposal to Bank of India for settlement of the account who have permitted the Defendants to sell said properties, i.e., vacant plots No. 1332, 1333 and 1334, Sector-14, Faridabad. The sale price was fixed at Rs. 26crore out of which Rs. 3 crore was deposited with the Bank immediately....
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The applicant bank has filed rejoinder stating that.......................Other plots mentioned in Schedule II i.e. Plot No. 1332, 1333 and 1334 of Sector 14, Faridabad are allegedly mortgaged with Bank of India but no proof of the same has been given in support of the same. If the same are mortgaged with Bank of India, the counsel for the Bank prayed for attachment of residual proceeds/value, if any after dues of Bank of India are satisfied.................................................................
After perusing the record and going through the documents, I found force in arguments of the counsel for the Applicant Bank, which are duly supported and are based on reliable source and documents. Being fully in agreement with contentions of the Applicant Bank, I have found that certain orders were also passed in another OAs whereby the same defendants owning liability to hundreds of crores of rupees towards banks are misusing the process of law. Particularly when there is dis-obeyance of orders of Hon'ble DRAT, the abstract of which is reproduced below:
"09.03.2015
Item No. 44
As there were declared holiday on 06.03.2015, 07.03.2015 and 08.03.2015 being Saturday and Sunday, the matter was listed today.
The case was fixed for proper orders on the IAs filed by Applicant particularly in the light of order dt. 18.03.2014 passed by Hon'ble DRAT in which defendant challenged the orders of this court whereby they were directed to declare their assets and to surrender passport.
The brief facts of this case are that the defendants who are defaulters of number of nationalized banks and liable to pay hundreds of crores of rupees, the bank has moved this I.A 439 of 2013 for directions to Defendant No. 2 & 3 namely Sh. ParmeshwarDayalLakhani and Ms. SumanLakhani to deposit their passport with the Registrar of the Tribunal and to disclose their assets on affidavit. Since this matter was challenged by the defendants, the Hon'ble DRAT has passed orders dt. 18.03.2014, the abstract of which is reproduced as under:
"However, there is need to ensure that the appellants continue to submit themselves before the Tribunal as and when they are required and they are not permitted to adopt dilatory tactics. To ensure continued presence of the appellants before the Tribunal, it is directed that both the appellants would appear before the Tribunal and file their respective undertakings by way of affidavits that they will continue to submit themselves before the Tribunal as and when summoned and will not leave the country without taking prior permission from the Tribunal by moving proper application.
However, I am not inclined to interfere with any other part of the order wherby the appellants have been asked to disclose their assets on an affidavit. It is stated before me that they have not so far complied with this part of the order. Therefore, directions need to be issued to the appellants to appear before the Tribunal and filed their affidavits as stated above as well as statement of their assets in terms of the order within a period of two weeks from the date of receipt copy of this order."
Despite passing of this order, in the presence of the defendants, they chose to take adjournments and defy the orders and this court passed an order dt. 30.01.2015 which is also reproduced hereunder:
Item No. 45
30.01.2015
Present: Sh. Karan Khanna, counsel for the applicant bank
Sh. Tejinder Singh for Sh. Manish Jain, counsel for the defendant no. 1
Proxy counsel for defendant no. 1 prayed for pass over as the main counsel is busy in Hon'ble High Court.
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After perusing the order passed by the Hon'ble DRAT it has been noticed that the defendants has preferred an appeal against order dated 25.04.2013, before Hon'ble DRAT and Hon'ble DRAT has passed a detailed order on 18.03.2014 whereby defendants/applicants were directed to ensure their continued presence and appearance before the Tribunal and to file their respective undertaking by way of affidavit that they will continue to appeared before this Tribunal as and when summoned and will not leave the country without taking prior permission by Tribunal by moving proper application and the Hon'ble DRAT has also set aside the part of order requiring defendants/applicants to deposit their passport. This order was subject to filing of affidavit by them before this Tribunal.
Moreover the directions were issued by this Tribunal to the defendants to disclose their asset on affidavit on or before next date of hearing and now in the light of the above order it has been found that neither defendants/applicants are present today nor they have complied with the directions issued by this court by way of filing affidavits not they have filed the affidavit for disclosing their assets. In fact the defendants/applicants has not only choose to refrain from filing the same but they have defying the directions issued by the Hon'ble DRAT to submit their affidavits in terms of the order within two weeks from the date of receipt of this order which was passed on 18.03.2014.
I have perused the record whereby neither any affidavit has been submitted by the defendants not they have complied with the directions of Hon'ble DRAT and even the written statement has not been filed despite giving sufficient opportunities. Therefore let the matter be adjourned for proper orders."
But the previous orders show that the defendants have not only disobeyed the orders of Hon'ble DRAT but tried to over reach this court with an attempt to dishonor orders as neither any undertaking by way of affidavit has been filed nor they appeared personally to give any undertaking that they will not leave country without prior permission of this Tribunal, what to say about disclosure of their personal assets on affidavit, which ultimately shows that the defendants are trying to defraud the bank and are using their personal wealth for ruining the economy of this country and further not only trying to derail the process of recovery but their such conduct deflects that they are trying to abscond. I am fully satisfied with the statement made by the counsel for the bank itself that the defendants who are living lavish life having all means and well connected with political and bureaucracy are not only disobeying the orders but also not cooperating with the court and are going to take other steps to defraud the bank so that the recoveries could not be affected from the vast assets of the defendants.
In fact such type of willful defaulters who are defaulters to the tune of hundreds of crores of rupees to the nationalized banks are the real economic terrorists who are in a habit of terrorizing the Indian economy which is otherwise the concern of the day not only for the Financial Institutions but also challenge before the Ministry of Finance. It is not only the concern of the concerned ministries but ultimately the affect of the same is borne by each and every citizen of the country and particularly the tax payer of the country who are paying tax for the development of the nation but these economic terrorists are hunting the Indian Economy with their ill will and are enjoying lavish life in the land of this county using the resources of this nation but hell bent to destroy it for their personal gains and deliberate loss to the national resources as well. Therefore, it has now become necessary to take instant stern action against such defaulters to avoid further harm to the economy of the country at large.
Since orders of the Hon'ble DRAT has not been obeyed, I am fully convinced that the applicant are adopting dilatory tactics and try to frustrate the decree going to be passed against them as they have failed to ensure their presence along with the undertaking and declaration of their personal assets on affidavit before the court. Therefore, directions are issued to the concerned passport Officer to issue notice further to the defendants qua their presence in the country or other status of abroad. Since it is the prayer of the bank to allow them to execute the orders through the Police Authorities, Director General of Police, Haryana is hereby directed to issue appropriate directions to the concerned Police Authorities for ensuring presence of the concerned defendants on the next date of hearing before this court.
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The above order passed by the Hon'ble DRAT is sufficient to convince the court for the attachment of these properties and moreover since Applicant Bank has already placed on record valuation report along with other documents, I am satisfied that the defendants who are heavily burdened with debt will try all means to frustrate the secured creditors by transferring, alienating or otherwise to part with their personal properties and to defraud the financial institutions. Therefore, the properties and shared detailed in Schedule II and III respectively be attached.
Hence, IA is allowed. GM (Recovery) concerned is directed to get the orders noted in the relevant record of the MC Faridabad, as well as with regard to other properties before competent authorities by placing on record the orders of this court. Moreover, concerned GM Recovery shall ensure compliance of this order by the concerned authorities and copy of compliance report along with proof be placed on record."
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Meaning thereby that when both the present Applicant I.A IARC (AB) as well as Applicant/Defendant No. 4 (BOI) were pursuing their independent recovery suits in the shape of O.A 142 of 2013 and O.A 520 of 2014 along with other similar recovery cases pertaining to other banks, the order were passed in the presence of not only Applicant/Defendant No. 4 but other Defendant Nos. 1, 2 and 3 who are mortgagors/guarantors whose defence was closed vide order dated. 18.12.2013.
All the above mentioned facts prove that when directions were issued to the various agencies to look out for the defendants and to publish their photographs along with notice in compliance of the orders of the Hon'ble DRAT, the present Applicant/Defendant No. 4 BOI kept the court in dark and was duly entertaining and pursuing with the defaulters for whom even the police authorities have submitted a report that they were not traceable despite raids being carries out in respective premises. Infact the above orders dt. 09.03.2015 which is also a part of orderdt. 23.03.2015 which has now been prayed to be modified, was duly in the knowledge of the Applicant/defendant no. 4 BOI and has thus put question mark on the recovery of hundreds of crores of another Financial Institution through the mortgaged/attached properties.These facts are not hypothetical as the Applicant/Defendant No. 4 itself has placed on record registered sale deed of the attached properties No. 1332, 1333 and 1334, Sector-14, Faridabad which after releasing the same have been got transferred to the subsequent buyers vide sale deed dt. 25.11.2014, 17.12.2014 and 25.11.2014 respectively and the applicant/defendant no. 4 BOI itself has claimed that since their recoveries have been effected they have released properties knowing well that the directions had been issued for clubbing of the matters of Lakhani Group pertaining to the recovery of various FI's/Banks having all the common defaulters, they allowed release of these properties and concealed this fact from this court instead of providing the information either to the police authorities or to this court as at the time of releasing and selling of properties, the matters were pending before this Tribunal.
Reproduced part of the order dt. 23.03.2015 in which abstracts of order dt. 09.03.2015 clearly shows that the defendants were directed to disclose their assets on the affidavit and moreover now being enlightened and taking support of the latest amendment in the Act, this Tribunal is fully empowered under Section 19(13)(B) and has rightly exercised its powers which could be used suomoto and even application form the FI who has filed recovery proceedings is not required................
Therefore, in the light of the above facts and absence of any such provision in favour of the Applicant/Defendant No. 4, this I.A for releasing of immoveable properties of Sh. P.D Lakhani which has subsequently been transferred with the help of certain well-wishers of the defaulters during the pendency of the proceedings is an another attempt to defraud the secured creditors and is hereby dismissed."(highlighting is by me)
Feeling aggrieved, Bank of India has come up in appeal. After hearing the counsel for the parties and going through the material available on record I have unhesitatingly come to the conclusion that this appeal at the instance of Bank of India is not maintainable and is liable to be dismissed as such. The order of attachment of some properties belonging to respondent-defendant P.D.Lakhani of Lakhani Group of Companies and which the appellant bank was claiming to be exclusively mortgaged in its favour by P.D.Lakhani and which were unencumbered qua the claim of Allahabad Bank against Lakhanis, was passed on 23.03.2015 but despite the fact that Bank of India was impleaded as defendant no.4 in the O.A. of respondent no.1 ARC and it was its claim that the attached properties were in fact mortgaged in its favour by P.D.Lakhani and so could not be attached in the O.A. of respondent no.1 herein no appeal was filed by Bank of India challenging that order of attachment. It was rightly submitted by Mr.Pawan Malik, learned counsel for respondent no.1 herein that the Bank of India ought to have filed an appeal against the attachment order if it was of the view that the DRT had illegally attached its mortgaged properties. It waited for over six months and then filed an application before the DRT which though was shown to be under Section 152 CPC for correction of an apparent error but, in my view, was in fact an application for seeking review of the order dated 23.03.2015and consequently for recall of the order of attachment for the reason that the attached properties could not have been attached since the same were already mortgagedin favour of Bank of India by P.D.Lakhani. Even the learned DRT had observed in the impugned order dated 25.11.2016 referring to the application for correction of order daed 23.03.2015 ".............this IA for releasing of immovable properties of Sh. P.D.Lakhaniwhich has subsequently been transferred with the help of well wishers of the defaulters during the pendency of the proceedings.......... The grievance of the appellant bank was that even though it had been observed by the DRT in the attachment order that all the properties sought to be got attached were mortgaged in favour of Bank of India butwhile ordering attachment of the properties in Faridabad it was not clarified that the attachment of five properties was subject to the mortgage in favour of Bank of India and that omission was an inadvertent error which needed to be corrected by invoking Section 152 CPC. Same submission was made before this Tribunal by the learned counsel for the appellant bank. This submission appeared to be attractive at first blush on careful reading of the order dated 23.03.2015 shows that it was not the observation of the DRT but a submission made by the counsel for the defendants in the O.A. That submission made was an attempt to mislead firstly the DRT and then this Tribunal also. The learned Presiding Officer of the DRT rightly did not agree with the Bank of India's claim in that regard and rejected the application moved by it. In the attachment order dated 23.03.2015 DRT had agreed with the submission of counsel for the O.A. applicant that no proof of mortgage of the properties sought to be got attached in favour of Bank of India had been given.The learned DRT had not actually observed that the properties in question were mortgaged in favour of Bank of India. In fact, it was the claim ofdefendants and not the observation of the DRT that the properties sought to be got attached by respondent no.1 herein had already been mortgaged by them in favour of Bank of India but that claim was rejected by the DRT. There was thus no clerical error committed by the learned Presiding Officer which could be got corrected by moving an application under Section 152 CPC. So, the judgment of Madras High Court in "Maria Antony vsArokyam&Ors." , 2017 SCC Online Mad 22977, cited by Mr.G.S.Anand, learned counsel for the appellant Bank, dealing with the scope of Section 151 CPC is of no help to the appellant bank. In these circumstances the only conclusion which can be arrived at is that the application which was moved by Bank of India was in fact an application seeking review of the order dated 23.03.2015 and for lifting of the attachment in respect of the properties in Faridabad. That view gets strengthened also from the fact that Mr.G.S.Anand had also cited one judgment of Gujarat High Court(AIR 1994 Gujarat 2) which dealt with the scope of Order 38 Rule 5 CPC Thus, the appellant bank wanted to demonstrate that the three properties in question could not be attached before judgment. So, it was a review application which stood rejected vide impugned order dated 25.11.2016 and not an application under Section 152 CPC, as was being argued on behalf of the appellant and that way an attempt had been made to mislead this Tribunal by the learned counsel for the appellant Bank. A review application had been filed in the guise of 'error correction application' since remedy of appeal as well as review against the order dated 23.03.2015 had already become time barred. So, it was thought of by the bank to invoke Section 152 CPC. No a fair and honest decision that was.
Why I have observed in the earlier part of this order that this appeal is not maintainable is for the reason that it is well settled that no appeal lies against an order of rejection of review application. This is so even in case of appeals arising of orders passed by DRTs rejecting review applications. This legal position stands settled in the following decisions some of which were rendered by the Hon'ble Supreme Court and some High Courts and following those decisions even by Delhi DRAT as well as Allahabad DRAT also:-
(A) "M/s DSR Steel(Private) Ltd. Vs State of Rajasthan &Ors." (2012) 6 SCC 782
(B) " VinodKapoorvs State of Goa" (2012) 12 SCC 378"
(C) "M.N.HaidervsKnedriyaVidyalayaSanghathan (2004) 13 SCC 677
(D) "Suseel Finance & Leasing Co. vsM.Lata" (2004) 13 SCC 675
(E) "Shankar MotiramNalevsShiolalsingGannusingRanjput" (1994) 2 SCC 753
(F) "Parsn Medicinal Plants Pvt. Ltd. Vs Indian Bank &Ors." MANU/TN/7074/2018(Madras High Court)
(G) "MSTC LIMITED VS STANDARD CHARTERED BANK", MANU/MH/150/2019(Bombay High Court)
(H) "Mohd. Lukmanvs Bank of Baroda", II(2019) BC 46(All DRAT)
(I) 'Punjab National Bank vs Rama Fobres Ltd. &Ors.", (2008) 141 ` Comp. Cases 423.
(J) "Shri Vijay Singh vs Industrial Reconstructed Bank of India" MANU/DD/0056/2009(DELHI DRAT)
(K) "Hemender Sharma vs India Overseas Bank", (2001 SCC OnLine DRAT 33(DELHI DRAT).
This appeal is thus dismissed as not maintainable but with the clarification that this Tribunal has not gone into the merits and demerits of cases of all the parties including that of the buyer of the three properties which Bank of India was claiming to be mortgaged in its favour but after release from its charge were sold by Lakhanis, namely, Ms. JatinderKaurBanga who had sought her impleadment here and has also already moved an independent application before DRT for lifting of attachment of the three properties which she claimed to have purchased from their erstwhile owners(Lakhanis) and which application had directed on 11.01.2019 to be disposed of within three weeks.
Considering the fact that O.A. proceedings are going on from the year 2013 and the respondent no.1 is fighting this legal battle to recover crores of public money, DRT-3, Chandigarh, which has been given additional charge of DRT-I, Chandigarh these days will try to finally dispose of the O.A. with a period of three months from the date of receipt of this order and for the compliance of this direction even if matter is to be taken up on day to day basis that should be done. The matter shall now be placed before DRT-III, Chandigarh alongwith copy of this order and the O.A. records for fixing dates of hearing on 07.02.2019 at 2 p.m. The DRT-3 shall submit a report on the expiry of three months period of the O.A. is not decided within that period.