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Judgment
Brijesh Sethi, Chairperson
This is an appeal against the order dated 14.09.2022 passed by the learned Presiding Officer, DRT-II, Delhi which runs as under:-
“Matter is taken through VC.
The present IA 1778/2022 in SA No. 226/2022 is filed by SA applicant Preeti Garg on the ground that this Tribunal vide order dated 05.09.2022 restrained the respondent bank from taking any coercive action against the subject properties of the applicant till further order and thereafter issue notice to the respondents for reply and arguments on 21.09.2022. The applicant no. 1 received the copy of this order only on 07.09.2022 which was downloaded from the site of DRT and handed over the copy of the order dated 05.09.2022 to Ld. Receiver as well as Officer of the respondent bank who were present at the site for taking over the physical possession on 07.09.2022. Ld. Receiver and the Officer of respondent no.1 stated that no such order is passed by this Tribunal and this particular order is fabricated order. SA applicant no.1 even called for police assistance on police help line no.100 and accordingly, from the officer of the police station reached premises bearing No. B-1/44 and 45, Ground Floor, Sector-11, Rohini, Delhi-110085. However, Ld. Receiver forcibly entered the property alongwith officer of the respondent bank and forcibly started taking the physical possession of the subject property to defeat the effect of order dated 05.09.2022. Ld. Counsel for applicants also sent whats app message to Ld. Receiver at 10:45 am as the possession fixed for 12 noon on 07.09.2022 and Ld. Receiver read the said message but with utmost disrespect forcibly obtained the physical possession of the subject property. In support of his contention he filed copy of whats app message snap-short showing delivery and reading of the message by Ld. Receiver at 10:45 am. Prayer was accordingly made to restore the possession of the property taken by the receiver in violation of the stay order dated 05.09.2022 and to initiate action against Ld. Receiver under contempt of Court Act.
On notice of this application respondent no1 bank filed reply taking the preliminary objections viz copy of order dated 05.09.2022 was not sent to mobile of Ld. Receiver at cell no.9999704111; copy of order is not sent to any officer of the bank either physically and or through electronic mode. The SA paper book was served upon bank on 12.09.2022. No communication was made to the bank on 05.09.2022, 06.09.2022 and 07.09.20222 and thereafter at the spot. Mobile No.9810122699 does not belong to Ld. Receiver, but to another Advocate Sh. Naresh. The alleged message has not been read by receiver even till date. It has been revealed by Ld. Receiver Sh. Vedant Chandel, Advocate, he had not received any message from Sh. Amit Dhall, Advocate qua the passing over restraint order dated 05.09.2022 on his cell no.9999704111. Even till night of 13.09.2022 the said Junior has not opened the message and read it. The proceeding commenced at 12 noon and concluded at 1:56 pm. No stay order was shown during the entire proceedings. Prayer was accordingly made to dismiss the application no.1778/2022 filed by SA applicant.
After hearing the rival submissions I have given my thoughtful consideration to the same. Perusal of notice for taking over possession in Annexure-A/16 shows that Sh. Vedant Chandel, Advocate Ld. Receiver mentioned his two mobile numbers on his letter head. First mobile no. is as 9971446332 and the second mobile no. is incomplete being visible as 999970-----, as last four digits are not legible, due to dark smudge mark. Page-11 of IA reflects the whats app message snap-shot which shows delivery of message regarding stay at 10:45 am and sending of copy of order at 01.00 pm. The message reflects the name of receiver as Advocate Vedant Chandel was online as per snap-shot. Accordingly, the plea of respondent bank that Sh. Vedant Chandel was not aware of the message and the mobile belongs to his Junior Naresh is devoid of any merits. Accordingly, respondent bank is hereby directed to immediately restore the possession of the subject property no. 8-1/44 and 45, Ground Floor, Sector-11, Rohini, Delhi-110085, to SA applicant and to file compliance report before next date of hearing.
Case is adjourned to 21.09.2022 the date already fixed.
Sd/-
(Rajesh Malhotra)
Presiding Officer
DRT-II, Delhi”
Learned counsel for the appellants has challenged the said order being not in accordance with law and has been passed without giving them a proper hearing and without appreciating the contentions raised by the appellants.
The counsel for the respondents submits that there is no illegality or irregularity in the order and it has been passed after giving a detailed hearing to the parties and all the contentions raised by the bank have been duly noted and adjudicated. It is further submitted that it is a speaking order and, therefore, does not call for any interference. Learned counsel has further submitted that despite the restraint order passed by the learned DRT on 05.09.2022, the Receiver has taken possession of the property in question and this shows total disregard for Indian Bank vs. Smt. Preeti Garg order of the court and rather amounts to contempt of court.
A notice was issued by this Tribunal to the Court Receiver, Mr. Vedant Chandel, and in response to the said notice, he has put in appearance and filed his response to the allegations made against him by the respondents. He has stated in his response that at the time of taking over of the possession of the property, the order dated 05.09.2022 was not in his knowledge. It has further been submitted that no notice was pasted on the property on 30.08.2022 as alleged by the respondents and the notice was pasted on 26.08.2022 which contained his contact number (9999704111) and contact number of his associate (9971446332). It is further submitted that Mr. Vikas Garg, the husband of the defendant (respondent herein), had made telephone call to him and requested for a meeting, but he had refused to meet him. According to the learned Receiver, it shows the respondents were well aware of the his contact number. It is submitted that the respondents have suppressed the material fact from this Tribunal that they had not sent the copy of the order at mobile no.999970111 and that the order which was sent on 07.09.2022 on the contact number of associate of the learned Receiver at 1.01 p.m and not at 10.45 a.m. It is further submitted by the learned Receiver that no physical order was sent to him and no intimation was given to him through phone call or otherwise on 05.09.2022 or 06.09.2022. It is submitted that on 05.09.2022 when respondents were aware about the order dated 05.09.2022, they should have telephonically or via any other mode informed it to the bank.
Learned counsel for the respondents submits that though the possession has already been taken over, however, the bank has to comply with the direction passed by the learned DRT vide order dated 14.09.2022. Therefore, direction may be given to the appellant bank to restore the possession of the property in question to the respondents immediately.
The learned counsel for the appellant bank has refuted the submissions made by the learned counsel for the respondents on the ground that the bank has to recover Rs.9 crores approx. in the matter and if the possession is restored to the respondents, the bank will suffer irreparable loss.
I have heard the rival submissions and perused the record. For the sake of clarity, the order dated 05.09.2022 is re-produced as under:-
“Matter is taken through VC.
Ld. Counsel for applicant submitted that respondent no.3 has written a letter to respondent bank on 08.08.2022 to consider OTS with respect to account of respondent no.3 M/s Dortech Dorrs India Pvt. Ltd. The said request was forwarded to ZO Delhi on 08.08.2022 for consideration by branch of respondent bank. In-spite of said letter under consideration, respondent bank is proceeding to attach and auction the properties of applicants being guarantors of respondent no.3. He further pointed out that respondent bank in Sale notice dated 1.08.2022, has mentioned the reserve price of properties as Rs.120 lacs, which is not sufficient to satisfy the outstanding amount of Rs.913.53 lacs. On the other hand, Borrower company offered sum of Rs.800 lacs, which is much more than the reserve price. He further pointed out that notice for possession does not bear any date of issue. However, this particular letter was delivered to him on 06.8.2022 and thus, 30 days’ clear notice is not given by the Ld. Receiver of Respondent Bank. He [pointed out that even otherwise borrower company is before NCLT and hence, no coercive action can be taken against respondent no.3 and the personal secured assets of the applicants can be auctioned at any time later-on. Prayer was accordingly made to restrain the respondent bank from taking any coercive action, before notice to respondent bank.
I am satisfied with the contention of Ld. Counsel for SA applicant, especially the request letter request for OTS, which is already forwarded to ZO Delhi on 08.08.2022 for consideration by branch of respondent bank. Hence, respondent bank is hereby restrained from taking any coercive action against the subject properties of applicants, till further order. Issue notice to respondents for 21.09.2022 for reply and arguments.
Sd/-
(Rajesh Malhotra)
Presiding Officer
DRT-II, Delhi”
I have considered the rival submissions. Perusal of the record reveals that the learned Receiver Mr. Vedant Chandel was intimated about the restraint order dated 05.09.2022 by the learned counsel for respondents. It is submitted that the respondents had received the order on 07.09.2022 and the same was immediately downloaded. Learned Receiver on the above date, i.e.07.09.2022 was present at the site for taking possession of the property. Learned Receiver has two mobile numbers and the same is clear from his notice dated Nil issued for taking possession of the secured asset. The intimation regarding restraint order was sent over one of the mobile numbers i.e. 9971446332. Perusal of the record further reveals that the respondents had also sent the complete copy of the restraint order passed by the learned DRT-II, Delhi to the mobile of the learned Receiver on 07.09.2022 at 1.01 p.m. The learned Receiver has, however, taken a defence that the number on which the intimation and detailed Misc. Appeal No.242/2022 –Indian Bank vs. Smt. Preeti Garg order was sent belonged to his associate. In the opinion of this Tribunal, the learned Receiver cannot take refuge under the said ground for the reason that he had written both his numbers on the notice and now faced with a situation where there is documentary record that copy of the order has been received on mobile number no.9971446332, he has shifted the burden and stated that the said number belongs to is associate. This, in the opinion of the Tribunal, is a very unfortunate situation and shows utter disregard for the order of the Court and undermines the majesty of law. It may be further pointed out that the fact that the order has been received by the learned Receiver on mobile number 9971446332 is clear from the snapshot of Whatsapp placed on record by the learned counsel for the respondents. Perusal of the snapshot reveals two ticks which clearly connotes that the order has been received by the Receiver. In such a scenario, when a person has been thrown out and dispossessed from his premises despite a restraint order passed by the Tribunal in his favour, the interest of justice demands that the possession should immediately be restored back and the Court order is given due regard and must be complied with in letter and spirit. It goes without saying that in case, the learned DRT comes to the conclusion that there is no substance in Section 17 application moved by the respondents, the possession will be returned to the bank. The bank is, therefore, directed to restore the possession of the property to the respondent within seven days from today, i.e. 21.11.2022.
In view of the above discussion, there is no illegality or irregularity in the order passed by learned Presiding Officer and there are no reasons to interfere in the order dated 14.09.2022 vide which he has ordered the bank to restore back the possession of the property in question. The appeal is, therefore, dismissed. However, in view of the fact that huge amount is involved as claimed by the bank, the learned DRT is directed to take up the matter and dispose of the same within a period of three months from the date of receipt of the order.
With the above observation, the appeal stands disposed of.
File be consigned to record room.
Announced today, the 21st November, 2022.