Kapoor Sons Sales (P) Ltd. vs Oriental Bank Of Commerce

S.N.H. Zaidi, J

The instant application has been filed by the appellants for waiver of the condition of deposit of the amount for the entertainment of the accompanying appeal. No formal reply to that application has been filed by the respondent Bank.

Mr. A.K. Sharma, the learned Counsel for the applicants, has submitted that despite repeated requests of the borrower/applicants, the respondent Bank did not sell the mortgaged property bearing No. 209, Gagan Vihar, New Delhi and if that property would have been sold the entire liability of the borrower/applicants would have cleared, because that property is worth much more than the amount of debt due on them, as such the appellants are required to deposit any amount. He points out that the said property was also mortgaged qua another loan sanctioned by the respondent Bank to M/s. Golden Newsprint Pvt. Ltd. in respect of which O.A. No. 638/2000 filed by the Bank was allowed but the R.O. did not proceed to sell the mortgaged property in its R.C. proceedings as two persons, namely, Raj Bahadur and Smt. Ram Dulari had intervened and moved applications, whereupon the Tribunal below had stayed the proceedings qua the said property. Mr. Sharma has also contended that the applicants have no money to deposit the outstanding amount of debt, which has also not been determined by the Tribunal below in the order impugned.

Mr. H.P. Bhardwaj, the learned Counsel for the respondent has, on the other hand, has submitted that since the possession of the mortgaged property is not with the Bank, it could not sell that property.

I have considered the submissions of the parties Counsel and perused the record. This appeal has been directed against the order dated 21.2.2011 of DRT-III, Delhi passed in T.A. No. 518/2002 whereby Raj Bahadur and Smt. Ram Dulari, who had offered to pay the NPA amount qua the loan account of the appellants along with interest have been directed to pay that amount by the given timeframe, failing which the R.C. has been ordered to be issued for the entire claimed amount together with interest against all the defendants with the observation that the sale conducted by the Bank would be confirmed and the possession of the property would be delivered to the auction purchaser in the recovery proceedings of the R.C. issued in respect of O.A. No. 638/2000.

I agree with Mr. Sharma that the appellants have a good prima facie case qua the order impugned and looking to the peculiar circumstances of the case that the appellants have no dispute to the sale of the mortgaged property and have even requested the Bank to sell that property, which is said to have a high saleable value and capable of liquidating the entire liability of the appellants and the respondent Bank, despite having an R.C. issued in its favour in O.A. No. 638/2000 wherein the same property was also mortgaged, has failed to sell that property without any plausible reason, the appellants appear entitled for exemption from depositing any amount under Section 21 of the RDDBFI Act for the entertainment of the appeal. The respondent Bank may proceed to sell the property in the recovery proceedings of the R.C. The contention of Mr. Sharma has also force that since the Tribunal below has not determined any specific amount of debt due and has ordered the defendant/applicants to pay the claimed amount only if Raj Bahadur and Smt. Ram Dulari fail to pay the directed amount within the given time schedule, therefore, this is a fit case where the requirement of pre-deposit of the amount be fully waived and the appeal be entertained. The application is, therefore, entitled to be allowed and is allowed accordingly. Let the appeal be entertained. List the appeal on 17.2.2014 for final arguments, as the respondent Bank has already filed its reply to the appeal to which no rejoinder has been filed by the appellants despite taking various opportunities.