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Judgment
S.N.H. Zaidi, J
This appeal impugns the order dated 29.8.2013 of DRT-I, Delhi passed on application I.A. No. 85/2013 filed by respondent No. 2 in S.A. No. 40/2009 seeking reduction of the reserve price of Tower Nos. 12 and 13 situate at Community Centre, Okhla Industrial Area, Phase 1, New Delhi, whereby respondent No. 2 has been directed to make attempt to sell the said property at the same reserve price of Rs. 26.43 crores and on the same terms and conditions on which its earlier auction was held. The circumstances of the case indicate that the appellants had taken several credit facilities from respondent No. 1 Bank, which after classifying the account as NPA on 13.4.2009 and claiming an amount of Rs. 65,70,92,707.69 had issued a demand notice under Section 13(2) of the SARFAESI Act and proceeded to issue possession notice qua the secured assets situate at (i) Plot No. GH005, Sector-110, Noida, (ii) Plot Nos. 12 and 13, Community Centre, Okhla, Phase I, New Delhi, and (iii) A-21, Lajpat Nagar-II, New Delhi. The appellants challenged the actions of the Bank by filing S.A. No. 40/2009 before the concerned DRT. The respondent Bank then proceeded to sell the secured assets at Noida and Okhla through auction sale and the Tribunal below permitted to sell Noida property and until its sale, the sale of Okhla property was stayed. The Bank thereafter assigned the debt to respondent No. 2 company, which was impleaded to the S.A., vide DRT's order dated 25.11.2010. As the Noida property could not be sold for a long time despite various auctions, respondent No. 2 moved the Tribunal below for the sale of Okhla properties at the reserve price of Rs. 22.03 crores each. The said valuation was, however, disputed by the appellants and on the basis of the valuation report of Tower No. 12 produced by them, the said property was permitted to be sold at the reserve price of Rs. 26.43 crores under the supervision of the Registrar, vide order dated 16.8.2012 and it was put to auction sale on 28.9.2012 but the sale could not succeed as no bidder turned up.
On 4.2.2013, respondent No. 2 filed application I.A. No. 85/2013 for reduction of the reserve price of Tower Nos. 12 and 13 at Okhla to Rs. 22.03 crores each on the ground that it could not be sold at the reserve price of Rs. 26.43 crores. The appellants filed reply to that application raising objection to the grant of permission to sell the Okhla properties.
The Noida property was ultimately sold under the orders of the Hon'ble Delhi High Court and was purchased by the appellants for Rs. 36.01 crores with the permission of the Hon'ble Court, vide order dated 18.3.2013. The application IA No. 85/2013 was thereafter taken up for hearing by the Tribunal below and after hearing the parties it was disposed of by directing the sale of Tower No. 12 again at the earlier reserve price of Rs. 26.43 crores and on the same terms and conditions on which it was earlier auctioned, by the order impugned dated 29.8.2013.
Mr. Amit Dhupar, appearing for the appellants, has contended that the measures taken by the Bank under the SARFAESI Act were challenged in the S.A. filed in 2009 specifically on the ground that the accounts were not NPA when it were classified as such and the said S.A. is pending adjudication before the Tribunal below and despite the fact that the appellants had tried hard for its expeditious disposal, it could not be disposed of due to the conduct of the respondents. He has further contended that the Tribunal below has committed error in observing in the order impugned that Tower No. 12 at Okhla was earlier sold with the consent of the appellants, whereas the appellants had never consented for the sale of any property at Okhla and the Counsel for the appellants had only expressed no objection on 16.8.2012 to the supervision of the Registrar. Mr. Dhupar has also contended that written arguments were also filed by the appellants qua the application I.A. 85/2013 but the learned Tribunal below without considering/dealing with any of the arguments raised therein has disposed of that application by the order impugned, which is contrary to the principles of natural justice.
Mr. Suresh Dobhal, the Counsel for respondent No. 2, has pointed out that though about Rs. 65 crores were claimed through demand notice dated 13.4.2009 but with the accrual of interest an amount of Rs. 100,71,38,135/- had become due on 18.1.2013 and about Rs. 36 crores only have been recovered by the sale of the Noida property and more than Rs. 50 crores are yet to be recovered from the appellants. He has contended that Tower No. 12 at Okhla was put to sale under the supervision of the Registrar as the appellants had consented to it, which is evident from the order dated 16.8.2012 of the Tribunal below passed on I.A. No. 506/2012 filed by the respondent No. 2. It is also pointed out by him that as Tower Nos. 12 and 13 are identical and built on adjacent plots, the reserve price for both the towers was fixed at Rs. 22.03 crores each on the basis of the valuation report of tower No. 13, but since the appellants had disputed that valuation and filed the valuation report of tower No. 12, therefore, its reserve price was fixed at Rs. 26.43 crores on the basis of that report and respondent No. 2 had also agreed to sell tower No. 12 at such reserve price, but the auction conducted on 28.9.2012 failed as no bid was received. He has contended that in view of these circumstances, application I.A. No. 85/2013 was filed for reduction of the reserve price to Rs. 22.03 crores, but since it was vehemently opposed by the appellants, therefore, the respondent No. 2 had again agreed to sell the said lower No. 12 on the same reserve price of Rs. 26.43 crores and also on the same terms and conditions. It has also been pointed out that besides filing this appeal the appellants have also filed an application before the Tribunal below for the review of the order impugned and the same is pending before it.
In rejoinder, Mr. Dhupar has submitted that the review application was moved before the filing of this appeal and since the said application is still pending disposal, therefore, this appeal is maintainable, because if the review application would have been disposed of prior to the disposal of appeal, only then this appeal could become infructuous.
The above contention of Mr. Dhupar is acceptable and the maintainability of this appeal is not affected by the pendency of the review application before the Tribunal below.
Having considered the submissions of the parties' Counsel and looking to the facts and circumstances of the case, I am of the view that the S.A., having been filed in 2009, should have been finally disposed of by now but since it is pending adjudication before the Tribunal below, therefore, all the pleas taken and all the issues raised therein, including the issue of classification of the account as NPA, shall be considered/dealt with at the time of disposal of the SA. The application I.A. No. 85/2013 was filed for a limited purpose of reducing the reserve price of the properties at Okhla on the ground that the auction sale of tower No. 12 at the reserve price of Rs. 26.43 crores could not be succeeded. In my opinion, for the purpose of disposal of that application the Tribunal below was not required to consider/dealt with the issue relating to the classification of the account as NPA even though it was raised again in the reply filed to that application or in the written arguments. The order impugned, therefore, cannot be said to be violative of the principles of natural justice or suffering with any legal infirmity for not considering that issue.
I agree with Mr. Dobhal that the order dated 16.8.2012 passed on I.A. No. 506/2012 clearly indicates that the application was allowed by the Tribunal below as the Counsel for the applicants (appellants herein) had expressed no objection to the sale of Okhla property under the supervision of the Registrar, as such it is not acceptable that the consent was not for the sale of that property but was limited for only qua the supervision of Registrar. The said order reads thus:
Heard learned Counsel for both the parties. Learned Counsel for the respondent company submits that the sale of Okhla property be allowed to sale under supervision of Registrar. Learned Counsel for the applicant has no objection. Hence this application is allowed and disposed of accordingly.
This order was not challenged by the appellants and tower No. 12 at Okhla was put to sale on 28.9.2012 but the auction had failed as no bid was received. The Tribunal below has, therefore, committed no error in holding that the auction sale of that property was held with the consent of the applicants/appellants. As the issues raised in the S.A. qua the actions of the respondents can be considered only when the S.A. would be taken up for adjudication and are not required to be dealt with for disposal of application (I.A. No. 85/2013) though in reply to that application or in the written submissions the issue of classification of the account as NPA, was raised again. The order impugned is, therefore, does not appear to be suffering with any legal infirmity for not considering those issues.
On the basis of the discussion made above, this appeal has no force and is liable to be dismissed. The appeal is, accordingly, dismissed in limine at the stage of admission. However, since the concerned S.A. is pending disposal since 2009, the Tribunal below is directed to make endeavour for expeditious disposal of the S.A., if possible, within three months from the date a copy of this order is placed before it.
Copy of this order be furnished to the parties as per law and be also sent to the DRT concerned.