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Judgment
Ranjit Singh, J
The respondent Assets Reconstruction Company (India) Ltd. (ARCIL) has filed a Miscellaneous Case No. 790/2014 praying for issuing direction to the Registrar of this Tribunal to release the amount of Rs. 1,39,25,000/- in favour of respondent ARCIL on the ground that the three out of four appeals filed by the appellants had been dismissed.
On 5.3.2015, order was pronounced in the open Court allowing the prayer in the application giving liberty to the applicant/respondent to move an application before the Registrar of this Tribunal to release the amount in favour of the respondent. While dictating the order, it was felt that the case would require further consideration as out of the four appeals one was allowed and the order passed by this Tribunal in two of the appeals had been challenged before the Hon'ble High Court of Delhi. This aspect that out of four appeals one was allowed and also the fact that appeals were directed against interim orders whereas the S.As. were pending adjudication of the Tribunal below had escaped notice of this Tribunal while pronouncing the order. A need therefore was felt for reconsidering the prayer made in the application for release of this amount in favour of respondent ARCIL during the pendency of the S.As, more so, when the orders passed by this Tribunal in two appeals were under challenge and so under consideration by the High Court. Accordingly, the application was directed to be put up for rehearing under intimation to the Counsel.
The case was accordingly listed for hearing on 9.3.2015 on which date the Counsel for the parties appeared before this Tribunal and were apprised of the reasons for which the case was listed for rehearing even though the order had been pronounced on 5.3.2015. On request of the Counsel, the case was adjourned for 20.3.2015 for arguments. The Counsel have accordingly been heard today in this background.
In order to appreciate the controversy to bring out the need for rehearing of this application, it may be appropriate to take note of the factual background of the case leading to filing of this application by respondent.
Appellant herein had filed four separate S.As. i.e. S.A. No. 525/2012, M/s. Kuaan International v. ARCIL, S.A. No. 527/2012, M/s. Kumar Aluminium v. ARCIL, S.A. No. 528/2012, M/s. Kuaan Enterprises v. ARGIL and S.A. No. 526/2012, Cookers India v. ARCIL. These four S.As. were filed to challenge the action of the respondent financial institution (FI) in respect of a common mortgage properties vide which physical possession was being taken by a Court Receiver appointed by ACMM, Delhi on 29.9.2012 and on 1.10.2012. The plea in the S.As. was that the appellant had made representation under Section 13(3A), but the erstwhile Oriental Bank of Commerce had not disposed of the same in accordance with law.
The applicant/respondent FI came forward to file reply before the Tribunal below to urge that Oriental Bank of Commerce had assigned debt to the ARCIL. The plea also was that the SA applications were barred by limitation as the challenge to the possession notice dated 14.5.2003 was not filed within the stipulated time of 45 days.
The Tribunal did not find any prima facie case to grant interim relief and rejected the same. All issues were left open to be decided.
This order was challenged before this Tribunal. To maintain this appeal, the appellant prayed for deposit of 25% of the claimed amount. The Tribunal allowed this prayer and accordingly heard the appeal on deposit of 25% of the amount claimed which was Rs. 5,56,60,345/-. Directions were issued to deposit this amount by way of FDRs in the name of Registrar of this Tribunal.
Later on, respondent FI filed an application for dismissal of the Miscellaneous Appeal No. 39/2013. This Tribunal found that the view formed by the Tribunal below that there was no prima facie case for interim relief, did not suffer from any infirmity. The appeal was accordingly dismissed. The respondent ARCIL has now filed an application for release an amount of Rs. 1,39,25,000/- which is lying deposited with the Registrar of this Tribunal.
It may need a notice here that the appellant herein had filed four separate appeals against the order passed by the Tribunal below, declining interim relief in the four separate SAs. This Tribunal dismissed the Misc. Appeal No. 39/2013 titled M/s. Kumar Aluminium v. ARCIL (arising out of S.A. No. 527/2012) as premature on 22.2.2013. Inward (Appeal) No. 643/2012 titled Kuaan International v. ARCIL (arising out of S.A. No. 525/2012) was dismissed on 26.2.2013. Misc. Appeal No. 259/2013 titled Kuaan Enterprises v. ARCIL (arising out of S.A. No. 528/2012) was dismissed on merits on 22.11.2013. Misc. Appeal No. 260/2013 titled Cooker India Domestic Appliances (P) Ltd. v. ARCIL (arising out of S.A. No. 526/2012) was allowed on 23.7.2013.
The appellant had then filed a review application against order passed in Inward (appeal) No. 643/2012 and Misc. Appeal No. 259/2013, which were also dismissed on 25.3.2014 and on 11.4.2014 respectively. The respondent ARCIL had also filed a review in Miscellaneous Appeal No. 260/2013, which was dismissed on 9.4.2014.
The application filed by the appellant for refund of the equivalent amount of 25% deposited in Miscellaneous Appeal No. 39/2013 was dismissed on 4.3.2013. Against this order, the appellant filed a writ petition before the High Court. The High Court dismissed the writ petition by observing that the statement/concession made/given by the Counsel for the appellant to pre-deposit 25% of the claimed amount as one consolidated amount with regard to all the appeals/accounts, which was accepted by this Tribunal, and so the appellant now cannot be permitted to resile from the statement/concession. The Court ultimately found that there was no segregation of the amount claimed against four accounts.
The respondent ARCIL has now filed this application for release of the amount of Rs. 1,39,25,000/- which was deposited by the appellant as consolidated sum to maintain all the four appeals.
The notice of the application was issued to the non-applicant/appellant. Reply has been filed, which was taken on record. The appellant would term this application filed by ARCIL to be in gross abuse of process of law which would merit outright rejection. The appellant would also rely upon judgment of the Hon'ble Gujarat High Court in the case of Babu Ganesh Singh Deepnarayan v. Union of India & Anr., 2009 (3) Bankers' Journal 516, to plead that there is no provision in the statute to release amount of pre-deposit made under second proviso of Section 18 of the SARFAESI Act. The appellant would also point out that the order passed by the Delhi High Court is challenged before the Hon'ble Supreme Court in SLP filed by the appellant. The order passed in the appeals titled M/s. Kuaan International v. ARCIL and Kuaan Enterprises v. ARCIL as referred to above have also been challenged before the Delhi High Court and the High Court has issued notices. It is also pointed out that all the four S.As. are pending before the Tribunal below and that the appeal titled M/s. Cookers India v. ARCIL has been allowed. Plea therefore is that no amount can be released. The appellant has accordingly opposed the application filed in this case.
I have considered the stand taken by the non-applicant/appellant afresh and would find substance in this plea. This consolidated amount was deposited with the Registrar of this Tribunal to maintain the four appeals filed to challenge the orders passed in four separate S.As. where interim prayer made by the appellants had been declined. Three appeals may have been dismissed and thus the prayer for interim orders would stand declined. All the four S.As. are still pending. One of the appeals has been allowed. The liability of the appellant is yet to be determined on the basis of challenge raised in these S.As. Obviously it would not be fair to release the amount in favour of the respondent while the issue regarding liability is being adjudicated. In case the amount deposited by the appellants is released in favour of respondent ARCIL pending adjudication of this S.As. it may lead to unfair enrichment if S.As. are later allowed. The fair approach thus under the circumstances would be to allow the amount remain with the Registrar of this Tribunal. Appropriate order can always be passed for disbursement of this amount after the disposal of the S.As. Additional factor which has prompted me to take this view is the fact that the orders passed by this Tribunal are under challenge before the High Court. The orders dismissing the appeals have thus not attained finality. It would not sound fair to release the amount in favour of the respondent at this stage later to find that the respondent is not entitled to receive the same. The fair approach thus is to retain this amount lying with the Registrar of this Tribunal as it is which would be in the interest of equity, fair play and justice and would not result in any prejudice to any of the parties.
The prayer for release of the amount in favour of the respondent is, therefore, rejected. The amount deposited by the appellants shall remain deposited with the Registrar of this Tribunal till further orders. The Registrar to renew the FDR from time-to-time. Parties would be at liberty to approach this Tribunal for disbursement of this amount once the lis is finalised one way or the other.
Ordered accordingly.