Dev Enterprises And Ors. vs Indian Overseas Bank

Ranjit Singh, J

This appeal is directed against the order dated 1st January, 2013 passed in I.A. No. 627 of 2010 in SA No. 88 of 2009. This I.A. was filed by the appellant for recall/setting aside of the order dated 28th April, 2010 and to hear I.A. No. 277/2010 earlier filed by the appellant on merit on the grounds as mentioned in the IA. The Tribunal below found that the SA was filed by the appellant for challenging the notice dated November 19, 2008 under Section 13(2) of the SARFAESI Act followed by possession notice dated May 16, 2009 and steps taken thereafter. As per the appellant, the action of the respondent Bank was illegal, void and not sustainable under the law. The prayer further in the SA was to restrain the respondent Bank and its employees, agents from proceeding further in any manner including taking actual physical possession of the property in question bearing No. D-45, Lajpat Nagar-1, 2nd Floor, New Delhi, which is a residential property owned by the appellant. The Tribunal below had passed the following order in I.A. No. 627 of 2010, on 28.4.2010:

"This application has been filed on behalf of applicants under Section 151, C.P.C. for granting time to the applicants to settle the dues and repay the amount due to the respondent Bank.

Learned Counsel for the respondent Bank vehemently opposed the application submitting that the property in question has already been sold by the Bank for an amount of Rs. 36.50 lacs and the highest bidder is behind the Bank for confirmation of sale.

I have considered the averments as mentioned in the application but do not find any force in the same. However, in the larger interest of justice, the applicants herein are directed to deposit Rs. 10 lacs with the respondent Bank within 15 days to show their bona fides. In case the amount is deposited within time, the respondent Bank is directed not to confirm the sale till the next date. In case the above amount is not deposited, the respondent Bank is at liberty to proceed with the SARFAESI proceedings in accordance with law. This I.A. stands disposed of accordingly."

Instead of complying with the conditions imposed in this order, the appellants moved another I.A. No. 627 of 2010 with the prayer as already noticed and the Tribunal at the out set enquired from the appellants whether he has complied with the directions contained in the order dated 28th April, 2010 requiring them to make deposit of Rs. 10 lacs. The Counsel appearing for the appellants then conceded that he could not comply with the said directions. The Tribunal below thereafter noticed that non-compliance of the order would disentitle the appellants to the right of any further hearing. Some comments about the conduct of the appellant have also been made.

The Counsel for the respondent Bank even has pointed out that when the order dated 28th April, 2010 was passed, the property had already been sold for a sum of Rs. 36.50 lacs and the person giving the highest bid was after the Bank for confirmation of sale. Despite having noticed this aspect, the Tribunal below showed indulgence to the appellant to protect his interest subject to the condition that he would deposit a sum of Rs. 10 lacs. Once the appellants could not comply with the directions, the consequences followed. Today, Mr. R.S. Sharma, Counsel for the respondent Bank, states that the sale has been confirmed and the entire sale proceeds has been realized to clear the amount. Mr. Sharma says that nothing is due against the appellants.

The Counsel for the appellant has impugned this order on the ground that the application was filed in the year 2010. Arguments in I.A. No. 277/2010 were heard on 31st August, 2010 and the case was listed on 3rd September, 2010 for orders, as per the Counsel, thereafter order has been passed nearly after two years of having heard the arguments. As per the Counsel for the appellant, this ground would be enough to set aside the impugned order.

Ordinarily the delay in passing the order in itself may be enough to indicate that the impugned order suffer from unfair adjudication. I have considered this aspect very minutely and I am of the view that the fact in the present case may not give indication of unfair disposal.

Prayer in the application was for recall of the earlier order passed. The earlier order was not put to challenge and prayer in the present application has been declined on the ground that the appellant had not complied with the directions given in the earlier order. All the orders passed by the Tribunal adjourning the case have been placed on record. The case was taken up on 3.9.2010 but was adjourned to 22nd February, 2011. The orders placed on record would show that the Tribunal had been adjourning this case for passing of the order due to paucity of time. In between the Presiding Officer had also proceeded on leave and the case had to be adjourned. In this way, the order could only be passed on 1st January, 2013. Though it is highly undesirable that Court or the Tribunal should take such a long time for passing the order, but considering the fact that the issue involved was limited for interim prayer which is declined due to earlier order having not been complied with, I do not think that there is any prejudice caused to the parties because of delayed decision. I do not find any sufficient cause to interfere in the impugned order only having regard to the delay in passing the same. The Counsel for the appellant has pleaded that the appellant has already paid a sum of Rs. 26 lacs. Since the SA is pending before the Tribunal below, all these pleas may now be raised first before the Tribunal below for passing an appropriate order.

The appeal is accordingly dismissed.