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Judgment
Ranjit Singh, J
On 8.12.2011 the Tribunal below declined the interim prayer sought by the appellants for restraining the respondent Bank from taking any further steps under the SARFAESI Act including the action to take possession of the property. The appellants had also prayed for restraining the Bank from putting the property in question to sale by public auction if Bank succeeded in obtaining the physical possession of the property. Aggrieved against the order passed by the Tribunal, the appellants have filed the present appeal on 19.12.2011. Ever since December 2011, this appeal is pending adjudication before this Tribunal and has been adjourned on one ground or the other. The first issue that arose before this Tribunal was regarding the prayer made by the appellants for waiving the requirement of pre-deposit for which an application under Section 18 of the SARFAESI Act was filed by the appellants. The plea of the appellants was that more than 50% of the amount mentioned as outstanding in the notice issued under Section 13(2) of the Act had been deposited. The Counsel for the Bank, however, opposed this plea and ultimately this Tribunal passed a detailed order on 28.12.2011 requiring the appellants to deposit 25% of the debt due as claimed by the secured creditor in its notice under Section 13(2) of the Act. This Tribunal had further clarified that appellants had to deposit 25% of Rs. 2,22,31,439.01. The case was accordingly listed for further orders on 20.1.2012.
Before the date of hearing, the appellants moved an application for the modification/correction of the order dated 28.12.2011 on the ground of some mistake in the figure mentioned which was due on 11.11.2011. The Tribunal issued notice on this application for 20.1.2012. The appellants raised an issue of the figure mentioned in the possession notice dated 11.11.2011 which, according to the appellants, included the Bank guarantee amount of Rs. 1,23,05,000/-. The Counsel for the Bank sought time to respond and ultimately came forward to submit that sum of Rs. 34,50,439/- had been credited in the account after the order dated 28.12.2011 passed by this Tribunal. The Counsel for the Bank further pointed out that an amount of Rs. 6,40,895/- was credited in the account and thus an amount of Rs. 14.56 lacs remained to be deposited by the appellant. The Counsel for the appellants disputed the submissions made by the Counsel for the Bank. While adjourning the case on 23.1.2012 in this background, the Counsel for the appellants appears to have prayed for stay of appellants' dispossession. The Counsel for the Bank at that stage made a statement that Bank would not take physical possession of the secured asset within that week when the case was being adjourned. The appeal was adjourned to 6.2.2012 with an interim order that till that date the possession of the property in question shall not be disturbed.
This interim order primarily passed for one week on 23.1.2012 has somehow continued to operate till date though the issue involved in the present appeal was the order declining the interim relief. It would thus be seen that by allowing the interim protection virtually the entire claim in the appeal stands allowed, though temporarily. This was subject to the final order that may be passed in the appeal. An application for recall was then filed by the appellants.
The impression conveyed is that all these methods were adopted to delay the disposal of the appeal once the appellants had the benefit of the interim order in their favour. On 9.10.2012, this Tribunal modified the earlier order by observing that the Bank guarantee amount of Rs. 1,23,05,000/- had not become due on the borrower and since this amount was included in the demand notice, this was liable to be reduced therefrom. Holding the appellants entitled to adjust the amount deposited subsequent to the issue of possession notice dated 11.11.2011 as well as of the deposits made after the order dated 28.12.2011, further four weeks' time was allowed to the appellants for complying with the modified order.
Even thereafter, dispute was raised by the appellants as to what amount would be required to be deposited, which, ultimately, could be resolved on 4.3.2014, as, in between, the appellants had also approached the Hon'ble High Court of Punjab and Haryana. The writ petition was withdrawn on 20.11.2012. It is now on literally being forced by this Tribunal, the appeal has been finally heard though attempt still was to seek adjournment, which had to be tackled by adjourning the matter from 12.3.2015 to 13.3.2015. On this date also appellant made out strenuous attempt in person to seek adjournment. The appellant could be tackled by reserving the order giving liberty to the appellants to file written submissions. Accordingly, the written submissions have been filed by the appellants. The Counsel for the Bank has only made his oral submissions.
Mr. S.N. Relan appearing for the Bank perhaps is justified in making a grievance that the appellants have enjoyed the benefit of interim order far too long which, in fact, was initially allowed with the intent to operate it for a period of one week. The perusal of the order dated 23.1.2012 would provide a clear indication that the Counsel for the Bank had stated before this Tribunal that Bank would not take physical possession of the secured assets within the period of one week while the case was being adjourned to 6.2.2012. This interim order passed for one week has continued till date. In between, one issue after another was raked up to pend this appeal.
The short question to be considered in the present appeal is whether the order passed by the Tribunal below declining the interim prayer is justified or not or in other words whether any case is made out for grant of interim relief as prayed in the appeal. The liability of the appellant from the date of the impugned order obviously must have increased by now. No submission has been made before me as to what is the stage of the S.A. pending before the Tribunal below so also in regard to the liability that is standing against the borrowers as on date.
The Counsel for the appellants has filed written submission running into 35 pages raising one plea after another. I have perused these written submission and has noticed that after making reference to the background in which the application was filed by the appellants for dispensing with the requirement of pre-deposit and thereafter making reference to modified order, it is stated that total amount due has been paid. Plea also is that the secured asset/property mentioned in the notice is still intact and there is no reduction in these secured assets. Reference is also made to various Bank guarantees and to some of the judgments which prima facie may not appear to have any relevance to the issue involved. It is obliquely urged that appellants were the guarantors/mortgagors and, therefore, could not come within the definition of the borrower. This perhaps was the line of submission for the purpose of seeking the waiver. The appellants themselves have conceded that the adjudication of the S.A. is pending before the Tribunal below and the amount or the interest on the NPA is to be determined and adjudicated. The appellants accordingly would pray that the proceedings be stayed in regard to the measures taken by the Bank under Section 13(4) of the SARFAESI Act on the ground that it is now evidence that a sum of Rs. 1,36,99,765/- has been deposited to meet the requirement of pre-deposit.
I have considered the submissions made before me. I am not convinced with the contentions raised in the written submissions submitted by the appellants which are quite verbose wherein reference is made to one judgment after another. The appellants have also made reference to some of the relevant factors which have to be taken into consideration. Merely because the appellants were made to make some deposits which concededly is 25% even after reducing the notice amount which, of course, is yet to be determined, the appellant cannot seek stay of the action of Bank which is continuing with the proceedings initiated under the SARFAESI Act. It has been rightly submitted on behalf of the appellants that what the Court or the Tribunal is to see is the balance of convenience and the aspect of irreparable loss. The appellants had all the time in the world to discharge the liability in case they were really interested in saving their mortgage property. By merely depositing 25% of the notice amount, that too, of the reduced amount of notice, the appellants cannot justifiably seek stay of the proceedings initiated by the Bank under the SARFAESI Act. There is no possibility of any irreparable loss as the appellants can easily deposit the amount before the Tribunal below to stall the further proceedings or even can redeem the property subsequently before the same is sold to any third party. Thus, it cannot be termed as a case where the appellants are going to suffer any irreparable loss which is not open to be compensated subsequently. The balance of convenience is also not in favour of the appellants. Merely after depositing 25% of the notice amount, the appellants have enjoyed the benefit of possession, which was stayed and which ultimately has stalled the proceedings under the SARFAESI Act. Appellants have made no sincere efforts to discharge their liability. The exact amount due is yet to be determined and this fact has been conceded by the appellants themselves. The notice amount is bound to have increased many-fold and in this background any further stay of the action under the SARFAESI Act by the Bank would seriously prejudice the right of the Bank to effect the recovery. Accordingly, I find no legal basis to interfere with the impugned order passed by the Tribunal below. No case for staying any further action initiated under the SARFAESI Act otherwise on merit is made out merely on the basis that the appellants have deposited 25% of the notice amount which primarily was to maintain this appeal. The appeal is accordingly dismissed.