ICICI Bank vs Maharana Pratap Education Center & Ors.

JUSTICE R. D. KHARE, CHAIRPERSON

The present appeal has been preferred under section 20 of the Recovery of Debts & Bankruptcy Act, 1993 (hereinafter referred to as the "RDB Act") against the order dated 20.06.2019, whereby the Appeal No. 08/2019 filed by the appellant u/s 30 of the said Act has been disposed off.

Brief facts of the matter are that the appellant had filed an Original Application No. 683/2016 against the respondents, which was decreed vide judgment dated 08.06.2017 and the recovery certificate dated 09.06.2017 was issued in the DRC No. 392/2017 for recovery of a sum of Rs.18,99,18,640.06 along with pendentelite and future interest @ 12.85 P.A. with monthly rests from the date of filing the O.A. till realization and costs.

It appears that the Recovery Officer vide order dated 10.08.2017 directed the judgment debtors/borrowers to declare their personal assets and issue a demand notice to the borrowers to deposit the amount as detailed in the recovery certificate, but the same could not be complied with by them. Further, the Recovery Officer vide its order dated 15.11.2017 had attached the properties mortgaged with the Bank situated at Jaipur and Kanpur and in this regard, the Advocate Commissioner, appointed for the same, submitted its report, which is recorded in the order sheet dated 03.01.2018 of the Recovery Officer. Thereafter, the appellant-Bank had filed valuation report and form 13 for the auction of the attached properties, which was recorded in the order sheet dated 06.03.2018.

It appears that in the said DRC proceedings, the respondent no.6 (judgment debtor) appeared and filed objections before the Recovery Officer, to which the Bank also filed its reply on 12.09.2018. Despite issuance of demand notice pursuant to the order of the Recovery Officer, the borrowers have not deposited any amount as detailed in the recovery certificate.

It is averred that the appellant-Bank filed an application dated 04.10.2018 before the Recovery Officer praying for attachment of the receivables/cash flow of Pratap University, Jaipur and Maharana Pratap Engineering College, Kanpur and the accounts maintained by the respondent no.1-borrower with non-lending banks. The appellant-Bank further filed an application on 04.10.2018 for attachment of the immovable property being C-8, 3^rd floor along with a specified roof right along with parking, Pashchimi Marg, Vasant Vihar, New Delhi and further prayed for auction of the share of the respondent no.3 in the said property. The appellant-Bank filed another application dated 04.10.2018 before the Recovery Officer for directing the Income Tax department to provide the details of bank accounts and the properties owned by the borrowers and further to direct the Indian Banking Association to provide the details of the Bank accounts owned by the borrowers with its member banks.

The Recovery Officer vide its order dated 11.10.2018 allowed the above mentioned applications of the Bank, against which a recall application dated 26.11.2018 was filed by the borrowers, which was dismissed vide order dated 03.12.2018. Since the borrowers did not pay any amount and comply the orders of the Recovery Officer, therefore, the appellant-Bank preferred an application dated 26.03.2019 along with valuation report dated 18.03.2019 for auction of the attached properties being Pratap University situated at Khasra No. 135, 133/465, 138, 139, 140, 141, 142/463, 257/464 and 134, village-Lamyamewal, near Chandwahi, Delhi-Mumbai Highway, Tehsil Amer, Jaipur. The appellant-Bank filed another application of the same day i.e. 26.03.2019 for directing the Banks to submit the statement of accounts and other investment details made by the borrowers through different banks and financial institutions.

It transpires that the appellant-Bank filed another application dated 05.04.2019 before the Recovery Officer for attachment of share of property of the respondent no.3. The Recovery Officer vide order dated 04.05.2019 disposed off the applications filed by the Bank by recording a finding that the order for attachment of bank accounts, order for management of the receivables/cash flows through escrow account and restraint order for respondent no.3 to deal with the share of the personal property has already been passed on 11.10.2018 and not required to be dealt with again. Against the said order, the appellant-Bank filed an appeal u/s 30 of the RDB Act before the Tribunal below, which was dismissed vide order impugned holding that there is no infirmity in the order of the Recovery Officer dated 04.05.2019 passed in DRC No. 392/2017, except for filing fresh valuation report of the attached properties, as fresh valuation reports are already on record. Being aggrieved by the said order, the present appeal has been filed by the appellant-bank.

Learned counsel for the appellant submitted that the order dated 11.10.2018 and 03.12.2018 has not been complied with by the borrowers (judgment debtors) and even the other banks have not cooperated with regard to the compliance of the above mentioned orders dated 11.10.2018 and 03.12.2018. It was further contended that the finding of the Recovery Officer in its order dated 04.05.2019 with regard to non-filing of steps for putting the properties on auction sale and complicating the case by the Bank by filing multiple applications is perverse, because the various applications have been filed by the Bank for securing the recovery of the dues as per the recovery certificate. It was further contended that the above mentioned applications were filed by the Bank for complying the earlier orders passed by the Recovery Officer, which were being violated by the borrowers. It was also contended that the appellant-Bank was pursuing the recovery proceedings before the Recovery Officer and had filed the valuation report for issuing the proclamation of sale, as such it was contended that the observations of the Recovery Officer are not in accordance with the record of the case. It was, therefore, prayed that the order impugned may be set aside by quashing the order dated 04.05.2019 passed by the Recovery Officer also.

It appears that despite service of notice, no one had appeared on behalf of the respondents, therefore, right of the respondents to file reply stood closed vide order dated 10.07.2023 of this appellant Tribunal and the case was proceeded ex-parte against them.

Having heard the leaned counsel for the appellant and considering the material available on record, undisputedly, the original application was filed by the Bank for recovery of its dues, which was decreed and the recovery certificate was issued against the borrowers.

Admittedly, three applications were filed by the appellant-Bank before the Recovery Officer with certain reliefs on 04.10.2018, which were allowed by the Recovery Officer of the Tribunal below vide order dated 11.10.2018 with the relief as sought by the Bank in its applications.

With regard to the applications filed by the Bank dated 12.02.2019, 13.02.2019 and 26.03.2019, the appellant itself has stated in para no. 5.24 of the memo of appeal that the said applications were filed in pursuance of the earlier orders passed by the recovery officer. The appellant-Bank has also stated in para 5.20 of the memo of appeal that the applications dated 26.03.2019 were preferred by the Bank for non-compliance of the orders dated 11.10.2018 and 03.12.2018 passed by the Recovery Officer against the borrowers. Thus it is clear that these applications were filed for enforcing the orders of the Recovery Officer and were not filed for any new relief. In this regard, the Recovery Officer vide its order dated 04.05.2019 has observed as under:-

From the above, it is clear that the appellant-Bank was filing the applications after applications, but had not taken any steps for issuance of sale notice for auctioning the property mortgaged with it, from which the recovery could have been made. Thus the Recovery Officer has rightly observed that the Bank is complicating the case by filing multiple applications, many of which have already been dealt with and further allowed the second application dated 26.03.2019 for taking steps for sale of the properties in question. As such the Tribunal below has rightly dismissed the appeal of the Bank holding that there is no infirmity in the order dated 04.05.2019 passed by the Recovery Officer.

In view of the discussions as recorded above, the order impugned does not call for any interference by this Tribunal. Consequently, the appeal is dismissed with no order as to costs.

A copy of this order be forwarded to the parties as well as to the DRT concerned and be also uploaded on e-DRT Portal.