James Hotel Ltd. vs State Bank Of India And Ors.

P.K. Bhasin, J

The appellant Company is running a hotel in Chandigarh by the name of 'James Hotel' (earlier known as 'Park Plaza'). For the smooth running of the hotel the appellant had obtained financial assistance from three Banks acting as a 'consortium' with Punjab National Bank as the lead Bank (though the appellant is claiming that it was not a consortium loan). As per the case of the appellant in this appeal in the notice issued to the appellant Company under Section 13(2) of the SARFAESI Act, Punjab National Bank had claimed Rs. 33,49,85,830/-, United Bank of India had claimed in its notice under Section 13(2) a sum of Rs. 11,61,29,178.59 while State Bank of India which had assigned loan facility to ARCUIL, was claiming a sum of Rs. 58,02,66,291/- from the appellant under Section 13(2). The appellant/borrower having failed to adhere to the terms and conditions of loan facilities and repaying the stipulated installments and interest in time these Banks after declaring the accounts as NPAs sought to recover the physical possession of the hotel property which was mortgaged by the appellant Company in favour of these Banks to secure the repayment of the loan amount to the Banks/secured creditors. The Banks took necessary steps under the SARFAESI Act for taking over physical possession of the mortgaged property. The appellant Company in order to protect its hotel from being taken over and sold by the Banks approached the DRT-I in Chandigarh with a petition under Section 17 of the SARFAESI Act (being S.A.A.R. No. 2028/2016) and sought inter alia, the relief of quashing of the proceedings initiated by the Banks under this Act and for restraining the Banks from taking over of the physical possession of James Hotel. That petition was taken up by the DRT on 23rd August, 2016 when at the request on behalf of the Banks it was adjourned to 29th August, 2016 for filing of replies and hearing on the interim relief application. However, after getting the matter adjourned on 23rd August, 2016 the Punjab National Bank as the lead Bank got a public notice published in newspapers on 24th August, 2016 informing the general public that the possession of James Hotel shall be taken over on 26th August, 2016 with the assistance of police. The appellant immediately moved the DRT on 24th August, 2016 itself by filing an application for some interim relief against the said threatened action of the Banks. However, the DRT, as per the case of the appellant, simply kept the application on its file without passing any order. Feeling dissatisfied by the DRT not passing any order on the appellant's prayer for staying the taking over of the physical possession of James Hotel on 26th August, 2016 the appellant rushed to this Tribunal on 26th August, 2016 (25th being Sunday) with an appeal and the same was ordered to be listed same day in the post lunch session after it was mentioned by Mr. Sanjiv Bhandari, learned Counsel for the appellant around lunch break. When the appeal was taken up after lunch break the following order was passed after hearing the learned Counsel for the appellant:

"Present: Mr. Sanjiv Bhandari along with Mr. Lakshay Sawney, Counsel for the appellant.

The appellant is aggrieved by the DRT not passing any effective order on its application seeking interim relief against the threatened action of the Bank to take over the physical possession of the hotel property which was mortgaged.

The appellant approached the DRT (S.A.R.R. No. 2028 of 2016) with the prayer for restraining the Banks/financial institutions from proceeding further with the threatened action of taking over of the possession of the mortgaged property. The further grievance of the appellant is that when the said application was taken up by the DRT on 22.8.2016, it was ordered to be taken up next date in view of the urgency highlighted and when the Counsel for the Banks appeared on 23.8.2016, they sought time to file reply. The matter was then adjourned to 29.8.2016. It is also the grievance of the appellant that till 23.8.2016 no notice of any action had been issued by the Banks/financial institutions for taking over the physical possession of the hotel, but after getting time from the DRT for filing of reply and getting the matter adjourned to 29.8.2016, the authorized officer of Punjab National Bank whose total dues as per the demand notice under the SARFAESI Act were to the tune of around Rs. 33.50 crore, acted in mala fide haste and got a notice published in newspaper on 24.8.2016 fixing today's date for taking over the physical possession of James Hotel in Chandigarh. That action on the part of Punjab National Bank has necessitated urgent mentioning, listing and hearing of this appeal today itself.

Considering the urgency urged in the matter, the appeal has been taken up for consideration in the post-lunch session.

During the course of hearing, the learned Counsel for the appellant submitted that undisputedly the appellant owes money to Punjab National Bank, but recovery thereof cannot be effected in the manner in which it is threatened to be done and the entire action is mala fide for the aforesaid reason inasmuch as despite the fact that the DRT had at the request of the Banks' Counsel fixed the next hearing on 29.8.2016 to enable them to file reply to the application of the appellant and it was contended that no notice of date of taking over of possession was given till then, but Punjab National Bank went ahead with the publication of the notice in newspaper next day, as noted above, after getting the adjournment.

The learned Counsel has submitted that the property sought to be taken over is a running hotel having a large number of guests staying there and the recovery officials have already started forcibly evicting those guests from the hotel premises and that is also one of the reasons for urgent hearing of the matter. It has also been submitted that the DRT can pass any order on 29.8.2016 after hearing the parties for which appellant's Counsel was ready on 23.8.2016 also, but Banks' Counsel were not ready. Despite the fact that there was extreme emergency and it had been brought to the notice of the learned Presiding Officer of DRT that after getting the time for filing of reply and the hearing adjourned for 29.8.2016, Punjab National Bank, with mala fide motive, got a public notice issued that physical possession of the hotel shall be taken over on 26.8.2016, but the learned, Presiding Officer simply kept that application also for 29.8.2016.

The appellant has also moved an application under Section 18 of the SARFAESI Act, alleging that in the facts and circumstances of the case this provision does not get attracted and, therefore, this appeal may be entertained without requiring the appellant to comply with the condition of pre-deposit of 50% of the amount which the Bank had demanded, particularly, when there is no adjudication of appellant's liability as on date and Banks/financial institutions' O.As. are also pending. It has also been submitted that the value of the hotel property is much more than Rs. 500 crore.

In support of his arguments, the Counsel for the appellant has also cited an order of this Tribunal, dated 11.7.2013, in Appeal Inward No. 418/2013, Simmi Kharbanda v. Punjab National Bank, arising out of S.A. No. 24/2013 (Delhi-III).

After hearing the learned Counsel for the appellant, I am of the view that as far as the applicability of Section 18 of the SARFAESI Act is concerned, the submission that the same does not get attracted cannot be decided at an ex-parte hearing. The respondent Banks/financial institutions would vitally be affected by any decision that may be taken on this aspect. Therefore, before this application is disposed of, notice of the same needs to go to them.

Considering all the facts and circumstances noticed above, let notice in the appeal as well as on the waiver application be issued to the respondents, returnable on 31.8.2016. Dasti service is allowed in addition to other modes of service like Speed Post/Courier. Appellant to file tracking reports along with the affidavit of service on the next date. Notice in the appeal shall, however, be subject to the order to be passed on the waiver application.

In case the appellant makes payment of Rs. 15 crore to Punjab National Bank, which claims to be the leader of consortium, by tomorrow, the proceedings relating to the taking over of the possession and eviction of the hotel guests shall remain in abeyance till next date. Said payment to Punjab National Bank will be subject to further orders regarding entitlement of other Banks.

Copy of this order be given dasti to the appellant."

The matter which was to be taken up on 31st August, 2016 was, however, taken up suo moto by this Tribunal on 29th August, 2016 because of certain disturbing facts being noticed by me while in routine going through e-news on internet Those disturbing facts were noticed by me in the suo moto proceedings which are re-produced below:

"Present: Mr. Pushkar Sood along with Mr. Lakshay Sawney, Counsel for the appellant.

This suo motu proceedings are being initiated in Miscellaneous Appeal No. 305/2016 for the reason that it appears that the appellant in the appeal has tried to overreach the judicial process while getting an order for urgent hearing of its appeal on 26.8.2016 in the post-lunch session and getting conditional interim relief also.

The appeal having been mentioned for an urgent hearing in the pre-lunch session on 26.8.2016 itself, the appeal was permitted to be listed the same very day considering the urgency expressed in the matter inasmuch as it was informed to this Tribunal that the Banks had already initiated process of taking over James Hotel Ltd. in Chandigarh in exercise of its powers under the SARFAESI Act and in that process the guests staying in the hotel were being harassed and put to a lot of convenience for no fault of theirs. After hearing the arguments from the side of the appellant in ex-parte hearing, this Tribunal, while issuing notice of the waiver application and the appeal, directed by that subject to appellant making a payment of Rs. 15 crore to Punjab National Bank by 27.8.2016, further proceedings for taking over of the physical possession of the hotel would remain in abeyance. The matter was adjourned for notice to respondents for 31.8.2016 since the matter before the DRT concerned at Chandigarh was stated to be listed for today for hearing. During the hearing of the matter before this Tribunal, Counsel for the appellant had stated that the appellant would have no objection if the DRT, after hearing the parties would pass any appropriate orders on 29.8.2016. However, the grievance expressed was that despite urgency expressed before the learned Presiding Officer of the DRT on coming to know of a public notice given by Punjab National Bank on 24.8.2016 informing the general public that the physical possession of the James Hotel would be taken over on 26.8.2016 the appellant had approached the DRT immediately since, on 23.8.2016, the Banks had themselves got the hearing deferred for 29.8.2016. However, on 24.8.2016, the learned DRT did not pass any order on the application moved by the appellant and that had necessitated the filing of the appeal before this Tribunal and getting an urgent hearing.

After passing the aforesaid order in the appeal, over the weekend while doing general surfing through the news across the country on the internet, I came across various news reports to the effect that the appellant had approached the Hon'ble Punjab and Haryana High Court also on 26.8.2016 and in that matter the Hon'ble High Court had ordered that the possession of the Hotel shall remain with the secured creditors/Banks till 31.8.2016 and DRT had been requested to hear the matter today, the date which was already fixed before it.

When the matter was being heard here, I was not informed that simultaneously hearing was going on before the Hon'ble High Court at Chandigarh also.

However, since the aforesaid facts came to my knowledge only through the media reportings on the internet, I have considered it appropriate to issue notice to the appellant to file an affidavit explaining the aforesaid reporting by the media in respect of the proceedings before the Hon'ble Punjab and Haryana High Court on 26.8.2016. The press reporting mentions that Banks had been successful in taking over the physical possession of the property within a few hours of their commencing proceedings for taking over of the physical possession around 11 a.m. While the matter was being argued in the post-lunch session before this Tribunal, it was represented that the proceedings for taking over the possession were on at the spot. Before any further orders are passed in the aforesaid facts and circumstances, I call upon the appellant to come with an affidavit of its Managing Director on 31.8.2016, the date already fixed in the matter. The Managing Director shall also appear in person on the said date before this Tribunal.

Today, when suo motu order was about to be dictated, Mr. Pushkar Sood, the learned Counsel for the appellant had appeared and mentioned that the appeal/which is listed for 31.8.2016 be permitted to be withdrawn in view of the developments, noted above by me, and the order passed by the Hon'ble Punjab Haryana High Court. He has brought an application also for withdrawal of the appeal and with that application, a copy of the order passed by the Hon'ble Punjab and Haryana High Court on 26.8.2016 has also been annexed. This application shall also be taken up for consideration and appropriate orders on 31.8.2016.

It is clarified that the passing of the order dated 26.8.2016 by this Tribunal in the appeal will not be considered to be a bar to the hearing of the matter by the DRT, which is listed today irrespective of the fact whether the appellant has made payment of Rs. 15 crores or not.

A copy of this order be brought to the notice of the DRT concerned through fax/e-mail as well as telephonically. Mr. Pushkar Sood says that he would also inform his counterpart appearing in the matter before DRT at Chandigarh immediately about this order.

As requested by Mr. Pushkar Sood, a copy of this order be given to him dast"

The order passed by the Hon'ble High Court on 26.8.2016, a copy of which was annexed with the I.A. No. 471/2016 seeking to withdraw the appeal is also reproduced below:

"Mr. Prem Singh and Others versus District Magistrate, Chandigarh and Others

Present: Mr. Akshay Bhan, Senior Advocate with Mr. Amandeep Singh Talwar, Advocate for the petitioners.

Mr. Dhaman Dhir, Advocate for UT Administration-respondent No. 1.

Mr. Anupam Gupta, Senior Advocate with Mr. R.S. Bhatia, Advocate for respondent No. 3 Punjab National Bank.

Mr. Puneet Bali, Senior Advocate with Mr. Rohit Sapra for respondent No. 4-ARCIL,

Mr. V.K. Sachdeva, Advocate.

Mr. Anand Chibbar, Senior Advocate with Mr. R.P. Luthra and Mr. Himanshu Luthra, Advocates for respondent No. 7 - James Hotel Ltd.

****

Notice of motion.

This case has been listed today. It was taken up in the pre-lunch session and we requested the learned Senior Advocate appearing for the petitioners to inform the learned Standing Counsel for the UT Administration and also the learned Advocates appearing for the secured-creditors and the learned Advocate appearing for respondent No. 7-James Hotel Ltd. before the Debt Recovery Tribunal-1, Chandigarh.

In the post-lunch session, Mr. Dhaman Dhir, Advocate has put in appearance for respondent No. 1 District Magistrate, Chandigarh.

Mr. Anupam Gupta, Senior Advocate with Mr. R.S. Bhatia, Advocate has put in appearance for respondent No. 3-Punjab National Bank.

Mr. Puneet Bali, Senior Advocate with Mr. Rohit Sapra, Advocate has put in appearance for respondent No. 4-Asset Reconstruction Company (India) Ltd. (ARCIL). It is submitted by Mr. Bali that ARCIL has taken over the liability of the State Bank of India (respondent No. 2) as well.

Mr. Anand Chibbar, Senior Advocate with Mr. R.P. Luthra Advocate has put in appearance for respondent No. 7-James Hotel Ltd.

The writ petition has been filed by the workmen of respondent No. 7-James Hotel Ltd. seeking quashing of the order dated 3.8.2016 (Annexure P-6) passed by the District Magistrate, Chandigarh (respondent No. 1) and the impugned notice dated 24.8.2016 (Annexure P-7) regarding taking physical possession of James Hotel Ltd. (respondent No. 7) on 26.8.2016 got illegally published by the Punjab National Bank (respondent No. 3). The primary grievance of the petitioners is that the secured-creditors of the James Hotel (respondent No. 7) is that possession is being surreptitiously taken by them.

We have heard submissions made by the learned Counsel appearing for the respective parties and deliberations were also carried out with the learned Counsel for the parties.

The immediate bone of contention is the continuation of running the James Hotel Ltd. (respondent No. 7). The petitioners who are workmen in the said hotel feel a threat to their livelihood as by closure of the hotel, they would be left with no job.

Mr. Akshay Bhan, learned Senior Advocate appearing for the petitioners, submits that the hotel is running with guests and it would be iniquitous to close the hotel suddenly without even giving reasonable time to the guests to vacate the hotel rooms; besides, the sudden closure of the hotel has resulted in grave inconvenience to the hotel guests and other functions that have been booked. Moreover, the petitioners who were working and earning their livelihood have been left in the lurch. It is submitted that the guests are very much there in the hotel premises and the workers are serving them. The guests are standing outside the hotel and they have nowhere to go whereas the petitioners who are the workmen are ready to serve them.

Mr. Anupam Gupta, learned Senior Advocate appearing for the Punjab National Bank (respondent No. 3), has submitted that physical and actual possession of the hotel has been taken.

Mr. Puneet Bali, learned Senior Advocate, reiterates the position that has been submitted by Mr. Anupam Gupta. It is submitted by learned Senior Counsel that the James Hotel (respondent No. 7) has been locked and sealed. However, in case the guests are feeling any inconvenience and the hotel is to be made functional only the secured-creditors be allowed to manage the hotel working and that the management be not handed over to respondent No. 7 --James Hotel.

According to Mr. Anand Chibbar, Senior Advocate for James Hotel (respondent No. 7), about 70 guests are still in the hotel. Besides, hotel is booked for a private exhibition for two days i.e. Saturday and Sunday for which cards have also been issued and advertisements published in the Press. It is further submitted that for the Enforcement of Security Interest under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('Act' for short), the taking of possession and sealing the premises in question is not the only process that is to be undertaken and a resort can be had to in terms of Section 13(4)(b) of the Act. It is also submitted that the possession is sought to be taken by the secured-creditors in a surreptitious manner, inasmuch as the District Magistrate, Chandigarh (respondent No. 1) has not supplied a copy of the order regarding taking of possession by the secured-creditors. In a letter addressed to the District Magistrate on 11.8.2016 and application dated 6.8.2016 for providing a copy of the order passed by the District Magistrate, Chandigarh, the latter has vide memo dated 22.8.2016 stated that the Manager, ARMS Punjab National Bank, Sector 17, Chandigarh had intimated vide his letter dated 13.8.2016 that he has already supplied a copy of the order dated 3.8.2016 under Section 14 of the Act passed by the Court in the case of M/s. James Hotel to all the necessary parties of the James Hotel including Haravatar Singh Arora and his Counsel in pursuance of the orders dated 11.2.2016 of the Hon'ble High Court of Bombay. Copy of the memo dated 22.8.2016 has been submitted and it is contended that instead of supplying a copy of the order, a reference has been made to the Counsel for the opposite side regarding supplying a copy of the order of the District Magistrate, Chandigarh (respondent No. 1) to the respondent No. 7 James Hotel. Therefore, according to learned Senior Counsel the process of taking possession is clearly illegal and it cannot be said to taking valid possession under the law.

As already noticed, the immediate concern is of the continuation of the hotel (respondent No. 7) and to ensure that guests are not inconvenienced by its immediate closure. There is considerable dispute between learned Counsel appearing for the respective parties as regards the guests.

Therefore, only as an interim measure and to avoid the guests being inconvenienced, we allow that they should continue to stay in the hotel for the coming weekend of Saturday and Sunday falling on 27.8.2016 and 28.8.2016 till the adjourned date, but this shall in no manner be taken that the possession has been restored to James Hotel (respondent No. 7). This would be in consonance with the suggestion of Mr. Punnet Bali, Senior Advocate appearing for respondent No. 4-ARCIL

It is made clear that the possession shall remain with the secured-creditors and they shall manage the counters either through the hotel staff by deputing their own persons or independently of the hotel management with the assistance of the petitioners-workmen. However, no fresh booking shall be made for the hotel rooms or for any functions in it. This arrangement shall continue till 31.8.2016. The date has been fixed with the consent of learned Counsel appearing for the parties; besides, the matter before the Debt-Recovery Tribunal-1, Chandigarh is listed for hearing on 29.8.2016 for consideration. We request Debt-Recovery Tribunal-1, Chandigarh to consider the matter on the said date.

List for hearing on 31.8.2016.

The United Bank of India (respondent No. 5) and Registrar of Companies (respondent No. 6) be served dasti for the said date. Copies of the petition be supplied to learned Counsel appearing for the said respondents during the course of the day."

On 31st August, 2016 the Managing Director of the appellant Company did not appear before this Tribunal as directed though his affidavit was filed by his Counsel and at the request of his Counsel he was granted exemption from personal appearance for that day he was stated to be indisposed and he was directed to appear on 6th September, 2016. The affidavit of Mr. Haravtar Singh Arora submitted on that day is re-produced below:

"Affidavit of Mr. Haravtar Singh Arora, Adult, Managing Director of M/s. James Hotel Ltd., Block No. 10, Sector 17-A, Chandigarh.

The deponent had engaged and instituted the Counsel for filing on 25.8.2016. Bank with staff had come to Hotel with full force on 26.8.2016 at 11.00 a.m. Some Bank staff/employees had filed a petition in High Court which was also filed on 26.8.2016 by mentioning to the CJ which came to be heard after lunch. The deponent was in the Hotel since morning trying to pacify the Bank officials. In fact the Bank officials and the staff of DC instead of taking the possession of the property--vandalizing the property and the deponent was busy protecting his property from being vandalized. An application to this effect is also being filed before the DRT challenging the possession notice copy whereof along with annexures is attached herewith.

The deponent understands the concern of the Hon'ble Court that the hearing of the matter in High Court should have been brought to the notice of this Hon'ble Court but the deponent was upset and confused about the property being vandalized that he could not even inform his Counsel about the stay granted by the High Court at 3 p.m.

The deponent was not aware about the filing of the matter by the staff till getting notice from the High Court on 26.8.2016 and thus there was no .... for informing his Counsel at Delhi.

Due to the untoward incidents created by the Bank and private politically influential persons, the deponent remained busy and could not find time to contact the Counsel.

Immediately upon realizing, an application to this effect was filed for withdrawing the appeal as DRT was considering the matter on merits and the prayed for relief in the present appeal was rendered in fructuous."

On 6th September, 2016 the Managing Director Mr. Haravtar Singh Arora appeared in person accompanied by his Counsel and on that day he filed an additional apology affidavit which is also re-produced below:

"Affidavit

I, Haravtar Singh Arora, s/o. Shri Kartar Singh, aged 57 years, at James Hotels Ltd., Block No. 10, Sector 17, Chandigarh presently at New Delhi do hereby solemnly affirm and state as under:

I am the Managing Director of the Appellant Company and am filing the present Affidavit.

I sincerely apologize to this Hon'ble Tribunal. I say that I did not have any intention to suppress any facts from this Hon'ble Tribunal and that I am sincerely sorry for the inconvenience that may have been caused due to my actions.

I say that the writ petition, being W.P.(C) 17518 of 2016, was filed by the employees/staff of the Appellant Company in their personal capacity. The said petition was mentioned before the Hon'ble High Court of Punjab and Haryana at Chandigarh in the pre-lunch session. I say that I had no information/knowledge of the same. The Hon'ble High Court directed the petitioners thereunder to inform the Respondents therein including the Appellant Company who was arraigned as Respondent No. 7 in the said Writ Petition. I say that I have no control over my staff and infact they also went to the Labour Commissioner seeking prior notice before they are asked to leave the Hotel and requesting that PNB ought to do the same.

I say that simultaneously the Bank Staff of PNB along with the police and certain political goons entered the premises of the Hotel and vandalized the property of the Appellant Company i.e. James Hotel. The guests were being harassed and were being thrown out of the Hotel and some of the guests were stuck in lifts due to power being cut off by the Bank staff. I further state that there were guests still in their rooms. The personal belongings of the guests were being stolen by the Bank Staff and other people.

I say that at this time I was physically present at the Hotel. I say that at that time my immediate priority was to safeguard the guests and ensure that their belongings are safe and secure. I was trying to control the situation.

I further say that a copy of the above said writ petition was served through my Counsel around 1.30 p.m. I say that I had no intimation of the same since I was protecting the situation created by the Bank officials at the site and I was totally confused, harassed and occupied in the premises.

I say that the Bank had not taken over possession of the Hotel, they were only interested to loot, vandalize and consume the food and beverages including alcohol. No Panchnama and inventory was prepared and there were guests and staff including me and other promoters in the Hotel during the entire time till about 7 p.m.

I say that the order of the Hon'ble High Court in the above said writ petition came to my knowledge approximately around 6 p.m. on 26.8.2016. Thereafter, I immediately informed my Counsel at Delhi about the same and accordingly we filed an Application for withdrawal of the present Appeal on the next working day of this Tribunal i.e. 29.8.2016.

I say that since the news in every paper and every TV channel the person who was going to give me a bridge loan backed out and a was informed that since my property is not in order any more I will not take any risk by investing in it. I say that as a result of the financier backing out I was unable to make payment of the amount of Rs. 15 crore that was directed by this Hon'ble Tribunal.

I again sincerely apologize to this Hon'ble Tribunal. I tender my unconditional and unqualified apology to this Hon'ble Tribunal and pray that this Hon'ble Tribunal may kindly accept the same."

At the time of hearing of the matter on 6.9.2016, all that the learned Counsel for the appellant had submitted was that there was no intentional non-disclosure of the hearing before the High Court of Punjab and Haryana on 26.8.2016 in the post-lunch session before this Tribunal when the present appeal was taken up for hearing on the same date, i.e. 26.8.2016, in the post-lunch session and the Managing Director's explanation that he could not communicate with his Advocate in Delhi when the matter was being heard in the High Court as well as in this Tribunal because of the unruly situation prevailing at the hotel complex as hundreds of persons including policemen had come to take over the physical possession of the hotel should be accepted as bona fide. It was also submitted that there was no intention on the part of the appellant to obtain any relief from this Tribunal by concealing the fact of High Court also being seized of the same matter which, in any case, was filed not by the appellant Company but by its employees who were facing the threat of being rendered jobless.

However, I do not find the explanation being given on behalf of the appellant to be convincing at all. From the facts narrated above it becomes abundantly evident that the appellant did not want to disclose to this Tribunal that the Hon'ble High Court of Punjab and Haryana was also hearing the matter in which the action of the Banks and police, etc. in taking over the physical possession of the hotel property was challenged. It is evident that the Hon'ble High Court had already declined to stay the taking over of the possession of the hotel and, in fact, a perusal of the High Court's order clearly shows that not only the Banks' Counsel but even the Counsel for the appellant Company herein had submitted before the High Court at the time of hearing there that the hotel had been locked and sealed while, before this Tribunal, it was being argued around the same time that officials in large number who had come to take over the possession of the hotel were in the process of taking over the physical possession and accepting the said submission this Tribunal had passed an order staying the further proceedings at the site for the taking over of the possession of the hotel. Of course, that stay was granted conditional upon the appellant making payment of Rs. 15 crore to the Bank by 27.8.2016. After having decided to file an appeal before this Tribunal it cannot be accepted that the appellant's Managing Director would have forgotten about the hearing before this Tribunal, which was in the appeal of his Company, and to make enquiries from his Advocates in Delhi about the fate of the proceedings here. There is no doubt that the appellant ultimately did not make an attempt to derive any benefit from the conditional stay order granted by this Tribunal, but that circumstance becomes immaterial when the conduct of the appellant is being examined.

Considering all the facts and circumstances noticed above, I am of the view that the appellant has not been able to offer any satisfactory explanation for its conduct before this Tribunal on 26.8.2016. Though, for the above noted conduct displayed by the appellant serious action deserved to be taken, but considering the fact that the appellant has not made any attempt to take any advantage of the order passed by this Tribunal on 26.8.2016, the ends of justice would be met if the suo motu proceedings are brought to an end, but the appellant cannot be let off like that. It is saddled with the liability of making a payment of Rs. 10 lacs to be shared equally by three lending Banks. This payment should be made within two weeks from today and receipts of payment shall be submitted to the Registrar of this Tribunal within a week of making payments. As far as the application (I.A. No. 471 of 2016) for withdrawal of the appeal is concerned, that prayer, for the aforesaid reasons, also cannot be accepted and, consequently, the appeal would now stand dismissed.