Cancer Care Trust Research Foundation vs Bank of Baroda and Others

A.M. Sapre, J.—By filing this writ under Articles 226/227 of the Constitution of India, the petitioner seeks to challenge the interim order dated 31.3.2006, passed by Debts Recovery Appellate Tribunal, constituted under the Act called "Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Act 51/93)" (Annexure P-16).

The impugned order is passed on an application made by the petitioner seeking stay of execution of the sale of the properties. It was declined by the Tribunal by holding as follows:

Having heard the Counsel for the parties and going through the records it appears that appeal has been preferred against order dated 3.3.2006 by which objection was rejected, thereafter property was sold on 6.3.2006. Appellant without filing application for setting aside auction as per Rules 61, 62 of II Schedule of Income Tax Act has filed this appeal on 14.3.2006. Appellant has also not earlier impleaded auction purchaser and notice of appeal has yet to be served to the auction purchaser. So far as other contentions raised by Mr. Lalwani and Mr. Khanuja arc concerned, it appears that earlier on 3 occasions property was put to auction through public auction. So far as buyer of more than Rs. 5.00 crores is concerned as stated by Mr. Lalwani, Advocate during course of arguments, if they have any buyer of more than Rs. 5.00 crore, they can submit offer with a Demand Draft of 10% of the offered value drawn in favour of Recovery Officer before 5.4.2006 and may file application to set aside the auction sale then their offer may be considered by Recovery Officer before confirmation of sale. In view of the above, I don''t think it proper to grant interim relief by staying further proceedings and thus prayer is rejected.

The question is whether reasoning given by the Tribunal recorded supra is legal and/or proper.

Heard Mr. G.M. Chafekar, learned Senior Counsel with Mr. Vijay Asudani, learned Counsel for the petitioner.

Having heard learned Counsel for the petitioner and having perused record of the case, I find no merit in the writ and hence, it is liable to be dismissed in limine.

Firstly, it being an interlocutory order, the same is not liable to be interfered with in writ jurisdiction. Secondly, even assuming that this Court can interfere with in its extraordinary jurisdiction conferred under Article 227 of the Constitution of India, then in my view, no fault can be noticed in the impugned reasoning. Thirdly, discretion exercised by the Tribunal while declining to grant stay is in accord with judicial principal and, hence, cannot be interfered with by writ Court.

Learned Counsel for the petitioner made attempt to contend that in the absence of any notice of the proceeding, the entire proceedings are bad in law and without jurisdiction. I find no merit in this submission. It is not tenable on facts as well. The petitioner is a judgment debtor having suffered decree from the Tribunal to the tune of Rs. 3,48,79,982.40. This decree has become final and is put into execution. The petitioner is aware of the proceedings. They are participating in it and raising objections. Admittedly, third parties'' rights are involved and property is sold. Even then the Executing Court i.e. Recovery Officer gave yet another opportunity to the petitioner to bring better offer and deposit the 10% of the offer so that their offer can still be considered. Despite giving this opportunity to the petitioner they failed till date to bring the offer and deposit the money. If they could not deposit before the Tribunal, they could have done it here by depositing the money to show their bona fide. Had this been done, this Court would have extended the time for deposit in terms of the impugned order. The petitioner neither offered to deposit in Tribunal nor in this Court.

In my view, therefore, it is a clear case of delaying tactics resorted to by the petitioner so that sale may not take place and property is not sold. When the decree has become final, sale has taken place, auction purchaser has got the properly, the whole thing has become final for all practical purpose. At such belated attempt, the petitioner was rightly held not entitled to seek any stay of proceedings for finalisation of sale.

In view of foregoing discussion, the petition fails and is dismissed in limine.