Icici Bank Ltd vs Saigon Infratech Pvt. Ltd. And Ors

P.K. Bhasin, J

The appellant Bank is aggrieved by the rejection of its prayer made for an ex parte order of appointment of receiver by the Tribunal below made in the Original Application (O.A.) which was filed by it against the two respondents herein under Section 19 of the Recovery of Debts and Bankruptcy Act, 1993 for recovery of its money which was lent to the respondents for the purchase some construction equipment ('SOIL VIBRATORY ROLLER/2420'). The appellant's case in its O.A. was that the said equipment purchased by the respondents with the Bank's money was hypothecated in favour of the Bank. The respondents having defaulted in repayment of the loan instalments as per the terms of sanction of the loan facility was recalled and the respondents were called upon to clear the outstanding dues and also to surrender the possession of the hypothecated equipment. Since the respondents neither repaid the loan dues nor surrendered the possession of the hypothecated equipment the appellant Bank had to file the O.A. before the DRT.

In the O.A. the appellant Bank besides claiming the relief of issuance of recovery certificate for the amount due from the respondents also made a prayer for an order the appointment of a Receiver to repossess the hypothecated equipment so that the same could be sold and Bank's money recovered. The learned Presiding Officer of the DRT took up the O.A. ex parte consideration on 22.12.2017 and on that date he directed issuance of notice of the O.A. to the defendants in the O.A., respondents herein, returnable on 22.2.2018. No ex parte order was passed for appointment of receiver as was also the interim relief sought for. The O.A. was then ordered to be taken up by the Registrar for completion of pleadings. For 22.2.2018 the respondents-defendants could not be served since they had reportedly changed their address. The Counsel for the Bank informed the Registrar on that date the new address of the defendants had been found out and also that an application for appointment of receiver had been moved and so the matter may be placed before the learned Presiding Officer for necessary directions. Accordingly the case was put up before the Presiding Officer on 19.3.2018 when the following order was passed by the Presiding Officer on the application for appointment of receiver which had been filed by the Bank:

"I.A. No. 2132/2017

This application has been filed by the applicant Bank requesting therein for appointment of receiver.

Issue notice to I.A. No. 2132/2017 to the other side. Registry is directed to prepare notice on the fresh amended addresses of the defendants. Applicant is IA is directed to collect the notice from the registry and serve it upon the other side along with copy of this application and file the proof of service by way of affidavit on the next date of hearing.

Matter be listed on 15.5.2018 for hearing on this application."

Since the appellant Bank was wanting an ex parte order for appointment of recover and the learned Presiding Officer of the DRT did not pass ex parte order for the appointment of receiver and simple notice of the application was directed to be issued to the defendants in the O.A. the Bank filed the present appeal and made a prayer before this Tribunal also for an ex parte order of appointment of receiver relying upon a number of orders passed by the Hon'ble Delhi High Court in different suits whereby ex parte appointments of receivers were ordered in such like manners which were filed by the appellant Bank against its other defaulters. Learned Counsel for the Bank was heard whose submission that in such like cases ex parte order for appointment of receivers must be passed and that has been the trend of even the High Court also in such like matters and orders of the District Courts where ex orders were not passed the High Court has been setting aside those orders and receivers are being appointed in all cases brought before it not only by the appellant Bank but also by other financial institutions. Learned Counsel had submitted in reply to Court query that since the DRT had not granted ex parte relief to the Bank and had ordered simple notice to the defendants that amounts to rejection of the prayer for ex parte relief and so this appeal was maintainable. After hearing the Counsel order was reserved by me.

After going through the material on record placed by the appellant Bank which includes different orders passed in the O.A. this Tribunal has come to the conclusion that this appeal is liable to be dismissed. As noticed already, the Bank had sought appointment of a receiver as an interim relief in its O.A. itself as is the normal practice followed by Banks in general and no separate applications for interim reliefs are moved. The learned Presiding Officer had on 22.12.2017 simply directed issuance of notice of the O.A. which included the prayer for interim order of appointment of receiver also. So, prayer for an ex parte relief of appointment of receiver stood declined at that time but the Bank at that time did not feel aggrieved and no appeal was filed against rejection of its prayer for ex parte order of appointment of receiver. However, subsequently on the date fixed before the Registrar on 22.2.2018 for the appearance of the defendants the Counsel for the Bank informed that an application for appointment of receiver had been moved and accordingly the matter was placed before the Presiding Officer on 19.3.2018 and at that time also simple notice was ordered to be issued of that application also. It is thus clear that the prayer for ex parte order for the appointment of receiver initially stood rejected on 22.12.2017 and that order having not been challenged the Bank could not ask subsequently pray again for same ex parte relief. The remedy was to file appeal against the original order dated 22.12.2017 declining ex parte relief to the Bank. That order having not been challenged within the period of limitation became final and to avoid the consequences of that order becoming final the Bank could not challenge that order indirectly by filing appeal against the subsequent order dated 19.3.2018 which order in fact amounted to reiteration of the earlier order declining ex parte relief to the Bank. This aspect was not brought to the notice of this Tribunal at the time of ex parte hearing of this appeal for admission.

This appeal is therefore dismissed. The appellant will, however, be at liberty to press the prayer for appointment of receiver after the respondents enter appearance in its O.A. and the DRT will deal with that prayer uninfluenced by the present order of this Tribunal since I have not gone into the merits of the appellant's case. It is to be examined by the DRT at first instance as to whether the appellant Bank is entitled to an order of appointment of a receiver for taking possession of the hypothecated equipment and on which aspect DRT has already issued noticed to the defendants in the O.A.

Copy of this order be sent to the DRT.