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Judgment
Anil Kumar Srivastava, Chairperson
THE APPELLATE TRIBUNAL :
Instant appeal has arisen against judgment and order dated 29th April, 2022, passed by Learned DRT-III Kolkata in I.A. 216 of 2022 arising out of O.A. 104 of 2016 (Dhanalaxmi Bank Limited -vs- M/s. Emerald Mineral Exim Limited).
As per the pleadings the parties, O.A. 104 of 2016 was instituted on 28.01.2016 for realization of Rs.1,80,32,125.00 along with future interest from the Defendants and for issuance of the Recovery Certificate. Vide letter dated 01.02.2016 Appellant Bank communicated to the Indian Bank Association alleging fraud played by Defendant No. 6, i.e. Bengal Shrachi Housing Development Limited, Appellant herein. Consequent thereto, name of the Defendant No. 6 was black listed.
Vide order dated 20th September, 2016, DRT directed the Defendant No. 6 to deposit Rs.1.5 crore as security. On deposit of the amount, Bank was directed to withdraw the letter. In compliance of the same, Defendant No. 6 deposited an amount of Rs.1.5 crore on 26.9.2016 which was accepted by the Bank and kept in a No Lien Account. Consequent thereto, on the request of Defendant No. 6, vide order dated 22.8.2017 DRT directed the Bank to make a Fixed Deposit in the name of Registrar and submit it within seven days but it was not complied. Appeal preferred against the order was dismissed by the DRAT, Kolkata. Revisional Application, being C.O. 1019 of 2018, was filed before the Honble High Court at Calcutta wherein vide order dated 03.01.2022 the Honble High Court disposed of the revisional application with liberty to the Defendant No. 6 to approach DRT for refund of the money, if deposited, in terms of the order dated 20.9.2026 along with interest thereon.
An affidavit is filed by the Bank stating that an application was moved by the Bank before NCLT, Cuttack which was admitted and Resolution Professional was appointed. Defendant No. 1, Company, is in Liquidation and Liquidator was appointed. Bank has relinquished its security right over the property mentioned in the Schedule of the O.A. However, this order was challenged before the NCLAT.
Learned DRT dismissed the I.A. (I.A. 216 of 2022) with liberty to Defendant No. 6 to renew its prayer at the time of disposal of the O.A. It was held by the DRT that Defendant No. 6 had sold out the property to a third party violating contractual obligation. Consequent thereto Bank wrote a letter to the Indian Bank Association for black listing Defendant No. 6. It is further held that Defendant No. 6 agreed to deposit Rs.1.5 crore not only to withdraw the impugned letter but also as security against the flat because there was violation of contractual obligations. Learned DRT further held that payment of Rs.1.5 crore shall be considered only at the time of disposal of the O.A.
I have heard the Learned Counsel for the parties and perused the record.
Learned Counsel for Appellant would submit that the Appellant has moved an application under Section 144 of the C.P.C. which is maintainable. Reliance is placed upon South Eastern Coalfields Limited -vs- State of M.P. [(2003) 8 SCC 648], Indore Development Authority -vs- Manoharlal & Others [(2020) 8 SCC 129 and Kavita Trehan (Mrs) & Another -vs- Balsara Hygiene Products Limited [(1994) 5 SCC 380].
As far as applicability of Section 144 C.P.C. is concerned, there cannot be any dispute that this provision would be applicable even in the proceedings pending before the DRT. Hence, it is held that the I.A. is maintainable before the Learned DRT.
Learned Counsel for Appellant would further submit that the amount was deposited under the order of the DRT dated 20th September, 2016. Appellant is entitled for refund of the same. It is not in dispute that amount of Rs.1.5 crore was deposited in compliance of the order of DRT dated 20th September, 2016 wherein in paragraph 4 (vi) and (vii) it was directed that :
In respect of I.A. filed by the Defendant No. 6, Learned Counsel submits that the business of the Defendant No. 6 is very adversely affected. That Defendant No. 6 has decided to pay increased security deposit and is ready and willing to deposit Rs.1.50 crores immediately as security towards the claim made by the Appellant Bank in the present O.A.Learned Counsel for Defendant No. 6 seeks direction that the Appellant Bank shall withdraw the said letter. Learned Counsel for Appellant Bank raised objection and prays for unconditional repayment of claim amount with interest.
(vii) I find that Rs.1.50 crores (against the claim of Rs.1.80 crores made in the O.A.) is sufficient security. This is considered sufficient security by this Tribunal and accordingly the Defendant No. 6 is directed to deposit RS.1.50 crores within two days from the date of this order and the said amount should be treated as security provided by the Defendant No. 6. The amount shall be kept in a separate interest bearing account under lien of the Appellant Bank.
Prior to it an order was passed by the DRT on I.A. 742 of 2016 on 20th September, 2016 which was affirmed by the DRAT on 14.02.2018. Against the said judgment of the DRAT, C.O. 1019 of 2018 was filed before the Honble High Court at Calcutta which was decided vide order dated 03.01.2022 wherein the Honble High Court has recorded in its order that :
Mr. Siddhartha Banerjee, learned advocate appearing for the petitioner submits that the petitioner in terms of the Circular of the Reserve Bank of India bearing No. DBS.CO.FrMC.BC.No.3/23.08.001/2008-09dated March, 10, 2009 is obliged to intimate the said Indian Bank Association regarding the fraud practiced by the opposite party nos. 1 and 6 in transferring the mortgaged suit property to third party. He further submits that the Debts Recovery Tribunal while deciding an application under Section 19 of the said Act of 1993 has no jurisdiction to pass a direction for withdrawal of the said letter even on condition.
Submission of Mr. Banerjee, regarding lack of jurisdiction of the Tribunal to pass such a direction in a proceeding under Section 19 of the said Act of 1993 is not disputed by Mr. Saptansu Basu, learned Senior Counsel for the opposite party no. 6.
He, however, submits that his client may be permitted to withdraw the money deposited by him in terms of the order of the Tribunal along with the accrued interest thereon, particularly the said letter when has not been withdrawn till date.
The Honble High Court dismissed the I.A. 742 of 2016, however, giving liberty to the Defendant No. 6 to approach the DRT for refund of the money, if deposited, in terms of the order dated 20th September, 2016.
Perusal of the order of the Honble High Court as well as the facts of the present case would reveal that Respondent No. 2, namely, M/s. Emerald Mineral Exim Limited, borrowed money from the Dhanlaxmi Bank to purchase the suit property; Defendant No. 6, being the Builder of the property, the loan amount was disbursed through Defendant No. 6. A Quadripartite Agreement was entered into between the parties on 29th June, 2011. Parties thereto were obliged not to transfer or alienate the suit property without having previous consent of the Bank and/or without paying back the loan amount. After default in payment of the loan amount, an application under Section
19 of the Recovery of Debts and Bankruptcy Act (in short RDB Act) being O.A. 104 of 2016, was filed. It appears that in contravention to the terms of the agreement, flat in question was transferred to a third party. Now, the position remains that I.A. 742 of 2016 was dismissed by the Honble High Court. In compliance of the order, a fresh I.A. No. 216 of 2022 is filed by the Defendant No. 6 with a prayer for refund of the amount of Rs.1.5 crore along with interest.
Respondent No. 3, Mohammed Javed Sultan, in person, has filed an affidavit-in-opposition and submitted that the appeal filed against the order of the NCLT was allowed by NCLAT on 2nd August, 2022 and the impugned order dated 20th February, 2020 passed by the adjudicating authority, NCLT, Cuttack in TP No. 182/CTB/2019 in COPET No. 55 of 2016 was set aside. In the result, Corporate Debtor, Emerald Mineral Exim Private Limited is released from the rigour of Corporate Insolvency Resolution Process. All actions taken by the Interim Resolution Professional and Committee of Creditors are declared illegal and set aside. It is further submitted that this order of the NCLAT is further challenged before the Honble Supreme Court in Civil Appeal No. 7184 of 2022 which is still pending. Respondent No. 3 submitted that since appeal is still pending before the Honble Apex Court, this proceedings could not proceed.
Per contra, it is submitted by the Learned Counsel for Appellant that no interim order is passed by the Honble Apex Court, hence there is no moratorium in existence. Accordingly, the appeal can proceed.
Having considered the submission of the parties, I am of the view that there is no moratorium in existence and no interim order is passed by the Honble Apex Court in the appeal against the order of the NCLAT, the instant appeal will proceed.
A perusal of the impugned order would show that the Learned DRT has not refused to refund the amount rather it kept the matter pending till the disposal of the O.A. filed under Section 19 of the RDB Act. The Honble Calcutta High Court has considered the provisions of Section 19 of the RDB Act. Further it appears from the records that the Defendant No. 6 himself has violated the terms of the quadripartite agreement entered into between the parties on 29th June, 2011. Defendant No. 6 created third party interest in violation of the contractual obligations as such it would be appropriate that the issue of refund of the amount of Rs.1.5 crore should be considered and decided by the Learned DRT at the time of final disposal of the O.A.
I do not find any illegality in the impugned order. Appeal lacks merit and liable to be dismissed.
ORDER
The appeal is dismissed. However, since the matter is very old one, Learned DRT-III, Kolkata should make endeavour to decide the O.A. expeditiously.
No order as to costs.
File be consigned to Record room.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
Order dictated, signed and pronounced in open Court.