BMP Metals (P.) Ltd. And Ors. vs Bank Of Baroda

Ranjit Singh, J

Since Mr. Arun Aggarwal has appeared on behalf of caveator/1st respondent Bank, the caveat is discharged. One appeal was filed by M/s. BMP Metals Pvt. Ltd. and Mr. Arun Nanda to impugn the order dated 15.12.2015 passed by the Tribunal below in S.A. filed by the appellants. This miscellaneous appeal came up for hearing before this Tribunal on 28.12.2015. This appeal filed by the appellant was not properly constituted and the Registry accordingly had raised various objections. In fact, no power of attorney or letter of authority or Board resolution was filed with the appeal where one of the appellants was M/s. BMP Metals Pvt. Ltd. On the request made by the Counsel for the appellant, the case was adjourned for today to enable the appellants to remove the various objections raised by the Registry.

Today, it is noticed that the appellant Mr. Arun Nanda has filed another appeal where appellant M/s. BMP Metals Pvt. Ltd. is impleaded as respondent No. 2. Besides, Mr. Vimal Nanda is impleaded as respondent No. 3. How could Registry accept this second appeal when the first appeal filed by the same appellant was pending? While acting to remove objections, the appellants have added confusion by adopting an unknown procedure.

This appeal is entirely different than the earlier filed appeal. Without withdrawing the earlier appeal where the present appellant Mr. Arun Nanda was also one of the appellants, a second appeal is filed by the same appellant. This appeal has clearly been wrongly entertained by the Registry. There is no provision for substituting an appeal earlier filed. The situation as it stands today is that there are two appeals against the same order. In both the cases one of the appellants is common whereas one appellant has been impleaded as respondent in the second appeal.

When the Counsel is asked to explain as to under what provision of procedure or law the appellant has filed these appeals in this manner, a fresh Counsel appearing today for the appellant Mr. Arun Nanda states that the earlier appeal has been substituted by the present appeal. The Counsel is unable to explain as to under what provision this procedure can be adopted and accepted. The only course open to the appellant was to seek permission of the Tribunal to amend the appeal and to file an amended appeal in case he had any intention to change the parties in the manner it is done. Filing of both these appeals, where M/s. BMP Metals Pvt. Ltd. is appellant in one case and a respondent in the other, certainly would not be legally recognized procedure to adopt and to follow.

After wasting considerable time, the Counsel for the appellants has come to understand that the appellants ought to have sought permission to amend the appeal filed earlier and the fresh appeal could have been filed as amended appeal, or permission ought to have been sought to withdraw the earlier appeal to file a fresh one. Nothing of the sort has been done with the result both the appeals are listed for hearing.

The Counsel is given opportunity to rectify the error, but he responds by stating that the procedural needs should not stand in the way of doing justice. Accordingly, the Counsel is heard as it is Though the appeal will deserve to be dismissed being not properly constituted or filed but still I have considered the pleas on merit.

The order impugned is passed by the Tribunal giving time to the appellant to deposit the amount due in installments. The Tribunal has restrained the Bank from taking any coercive steps against the property. The plea before the Tribunal below was that M/s. BMP Metals Pvt. Ltd. had every intention to run the business and it had prayed for restructuring the account. Though the Counsel for the Bank had opposed the contention on the ground that more than Rs. 8.5 crore was due against the appellant and the appellant had no intention to make any Payment, the Tribunal below, still, directed the appellant to deposit Rs. 10 lac with the Bank by 18.12.2015, and further to deposit a sum of Rs. 15 lac on or before 23.12.2015 and another sum of Rs. 75 lac in three equal installments of Rs. 25 lac each first being on or before 21.1.2016 and the third on or before 7.2.2016. This concession had been allowed to the appellant on an application filed before the Tribunal below against the order passed by the CMM. It is not clearly made out from the record whether this application was filed by the company or by the guarantor Mr. Arun Nanda. The company which is impleaded as respondent No. 2 apparently was the applicant as it made the payment of the first installment by the due date i.e. 23.12.2015. The company, however, could not pay the remaining installments. The grievance of the appellant Mr. Arun Nanda is that his family is at the risk of losing their residential premises. The Counsel for the appellant says that the company now has a proposal for making payment. Once the company had made payment of first installment, it obviously means that the company had accepted the order passed by the Tribunal below and has now come up to challenge the same when the company could not make payment as per the schedule given by the Tribunal. The Tribunal has shown more than the required indulgence to the company as well as to the appellant. The Bank has been restrained from taking action on deposit of mere Rs. 1 crore that, too, in installment, against the recovery of Rs. 8.5 crore. What else would the appellant need? There is no reason, either pressed or otherwise made out for interfering with the impugned order or to re-schedule the payment as ordered by the Tribunal below.

Before filing the present appeal, the appellant had tried his luck before the Hon'ble High Court by filing a writ petition, but the writ petition, ultimately, was pressed and the same was dismissed with liberty to the appellant to seek appropriate remedy as available in accordance with law. Still the appellants have filed these appeals in this improper manner. These deserve to be dismissed on this ground alone. Even then I have considered the pleas on merit and find that there is no case made out for interference in the impugned order. The appeal(s) is/are accordingly dismissed in limine.