Excel Cars (P) Ltd. vs Canara Bank

Ranjit Singh, J

Through this order appeal No. 328/2010 and application filed for review of order dated 21.4.2010 passed in appeal NO. 194/2009 are being disposed of together these being connected appeals.

Miscellaneous Appeal NO. 194/2009 was filed to impugn the order dated 14.7.2009 passed by the Tribunal below in S.A. NO. 16/2009. Vide this order, the Tribunal had declined the interim relief regarding dispossession of the appellant from the property in question. In the appeal, the interim order in favour of the appellant was passed subject to his making a deposit of RS. 10 lacs in the name of the Registrar by 6.8.2009. Thereafter, the case has been adjourned for completion of pleadings. It may be worth a notice here that the appellant in this appeal is a tenant in the property in dispute. He was paying a monthly rent of RS. 1.5 lacs. As per the direction of the Tribunal, the appellant was required to deposit the rent regularly with the bank without prejudice to the rights of the parties. Stay accordingly was continued on these conditions and the appeal was disposed of. An application for review of this order dated 21.4.2010 was filed and this case accordingly rests at this stage.

Appeal NO. 328/2010 has been filed by M/s. Leatheroid Plastics (P) Ltd. on 27.8.2010. On the basis of some deposit made by the appellant and by taking into account the deposit made by his tenant in the connected appeal, further recovery proceedings were stayed by this Tribunal. Thereafter, this appeal was adjourned on different dates for completion of pleadings. An application then was moved for issuing direction to the respondent to file the statement of account. Notice of this application was issued and the case had to be adjourned when no statement of account was filed by the bank. Even the bank Manager had to be called when the order for filing the statement of account was not being complied with. In this process, the appeal has seen various adjournments from the year 2010 and onwards on different grounds. Ultimately, the bank came up with an affidavit along with an application that statement account is not available. Copy of this was supplied to the appellant, and the appeal was accordingly adjourned for today and that is how it is being taken up for hearing now.

The order under challenge in Appeal NO. 328/2010 has been passed by DRT-I, Delhi dismissing the S.A. of the appellant. However, the appellant was given two months time to pay the balance amount along with up-to-date interest as mentioned in the statement of account dated 1.6.2010 minus the amount deposited by the applicants, if any. Failing this, the bank was given liberty to proceed with the sale of the secured asset in accordance with law. The bank was directed not to appropriate the amount of the sale proceeds of the secured assets till the O.A. filed by the bank is finally disposed of, which is still pending. Concededly, the O.A. filed by the bank is still pending. This Tribunal, on 30.7.2009, by way of an interim measure has directed that the appellant would not be physically dispossessed from the property in question which continues to operate till date.

I have heard Mr. Vipul Goel for M/s. Leatheroid Play tics Pvt. Ltd. and Mr. A.N. Tiwari for Canara Bank. The whole issue relates to the fact that the bank has not supplied the statement of account and so there is a dispute about the amount which is payable. The learned counsel for the bank, however, has referred to the affidavit to say that they are not having the statement of accounts, but has relied upon a document where by the appellant had confirmed the amount due as on 4.1.2001. Mr. Vipul Goel would plead that this Tribunal may go into this aspect and determine the amount due, especially so, when payment of a substantial amount has been made by him as well as his tenant, who has filed a separate appeal. I am not inclined to do this exercise as that is not the job of this tribunal. This exercise can easily be done in the O.A. which is pending before the Tribunal below. In fact, vide the impugned order, two months time was given to the appellant to pay the balance amount along with up-to-date interest as mentioned in the statement of account dated 1.6.2010 minus the amount deposited by the appellant, if any. The bank was at liberty to proceed with the secured asset in case the appellant failed to pay the entire dues of the respondent bank within' the stipulated time. The Tribunal, while disposing of the S.A. directed the bank not to appropriate this sale proceeds of the secured asset till the O.A. filed by the bank is disposed of and the issue of interest to be charged has to be decided in the O.A. itself. Concededly, the O.A. is still pending. Under the circumstances it would be appropriate to direct the Tribunal below to dispose of the O.A. in a time-bound manner. After deposit of some amount, the appellant has got an interim order in his favour. The recovery proceedings against the appellant already stands stayed since 1.9.2010 and even possession of the appellant's tenant has also been protected. It may not be appropriate now to change this position. Let these orders to continue during the pendency of the O.A. The amount paid and which remains to be paid can very well be decided by the Tribunal in the O.A. pending and thereafter a reasonable time can be given to the appellant to deposit the amount.

Both the appeals are accordingly disposed of with the direction to the Tribunal to take up the O.A. pending before it and to decide the same preferably within a period of three months from the data of receipt of the copy of this order. During this period, the interim order passed in the present appeals shall continue to operate. If considered appropriate, the Tribunal would be at liberty to afford reasonable time to the appellant if any payment is found due from the appellants.

Both the appeals are disposed of in the above terms.

Copy of this order be furnished to the parties as per law and be also sent to the DRT concerned.