Harkanwaldeep Singh vs Bank Of Baroda

P.K. Bhasin, J

In this appeal, Counsel for the appellant has already argued. Since on the last date there was no appearance on behalf of respondent Bank, the matter was kept for today to give an opportunity to Bank Counsel to argue, but, today also Bank remains unrepresented. The appellant has filed this appeal to challenge the order dated 2.5.2017 passed by the learned DRT-II, Chandigarh, whereby, his application for modification of the earlier order dated 20.12.2016 was dismissed. Vide order dated 20.12.2016, the DRT had disposed of the S.A. of the appellant with the following observation:

"I have heard the Counsel at length and perused the record.

Since the intentions of the applicant seems to be bona fide in paying the amount and has prayed himself for disposing of the S.A., I do not see any obstacle in the recovery process, therefore, the following order is passed:

"The applicant is directed to approach the Authorised Officer with a copy of this order along with a proposal to pay entire overdue amount till date within 15 days from today and to be regular in future in paying the dues. The proposal shall also have clause of undertaking qua consent decree that in case of failure on the part of applicant to pay dues two consecutive installments in future as per agreed terms, the applicant himself will hand over physical possession of the secured assets to the Authorised Officer and the Authorised Officer shall be at liberty to proceed ahead from where the proceedings were deferred on account of this settlement. The Authorised Officer shall not dispossess the applicant till he fulfills his undertaking/terms of settlement."

With the above directions, the S.A. is disposed."

Thereafter, the appellant had moved an application in the disposed of S.A. for modification of the aforesaid order, which came to be rejected by the DRT and now the appellant, defaulting borrower, has filed the present appeal.

The impugned order is reproduced below:

MA 57 of 2017 in MA 26 of 2017

"By way of this application, Counsel for the applicant states that applicant seeks modification of order dated 20.12.2016 passed by this Tribunal.

He further states that the Bank be directed to reduce the amount of interest charged in excess amount prevalent rate of interest and also that the applicant undertakes to pay by the amount in lump sum after reduction of the excess charged interest and deduction of publication charges.

File of Securitization Application No. 328 of 2016 has been received.

File of Miscellaneous Application No. 26 of 2017 has been received, which was filed by a different Counsel.

The above said Miscellaneous Application was dismissed on 11.4.2017.

There is no mentioning of that Miscellaneous Application No. 26 of 2017 in this Present Miscellaneous Application No. 57 of 2017.

Counsel for the applicant states that since the applicant is now ready to pay the entire amount in lump sum that is why this present Miscellaneous Application has been filed.

It is clear that the applicant has chosen to play hide and seek with the Court inasmuch as by not mentioning of his filing another Miscellaneous Application which was dismissed on 11.4.2017.

It is for this reason that this present Miscellaneous Application No. 57 of 2017 deserves to be dismissed.

However, apart from the above the only variation in the prayer that has been urged today is that the applicant is ready to pay the entire amount in lump sum.

Since the original Securitization Application No. 328 of 2016 was taken up on mentioning and final orders were passed on the same day without issuing the notice to the respondent Bank taking in due consideration the facts stated therein, I see no reason to modify the order of 20.12.2016.

Dismissed

Copy of the order be supplied to the parties as per rule and after due compliance the record be consigned to the record room".

The main submission of the appellant in this appeal as pleaded in the memorandum of appeal is that he is ready to pay full dues of the Bank in lump sum, but the Tribunal should reduce the rate of interest and some other charges.

In my view, on this ground the impugned order cannot be set aside. The appellant had failed to avail the liberty given to him by the learned Presiding Officer vide order dated 20.12.2016, when no infirmity in the steps taken by the Bank under SARFAESI Act was found. Nor did the appellant feel aggrieved by that order and, thereafter, he simply moved miscellaneous application in the disposed of appeal which was rightly rejected by the DRT. If at all, the appellant wanted any relief in the rate of interest etc., he should have got the liability adjudicated from the DRT and could have made efforts to establish that the rate of interest being claimed by the Bank was in any way unconscionable. I, therefore, dismiss this appeal being devoid of any merit.

Record of the DRT be sent back.