Mamta Udhwani vs India Overseas Bank And Ors

This order is being prepared while working from home for being signed and communicated to the parties because of the suspension of functioning of DRAT due to spread of Corona Virus (Covid-19) in the entire country. This procedure for the preparation of orders by quasi judicial tribunals and their communication to the concerned litigants in place of formal pronouncement in open Court has been recognised by the Hon'ble Supreme Court in one of its judgments reported as AIR 2008 SC 2594, "State Bank of India and Ors. Vs. S.N.Goyal"(para 19) wherein it was observed that:-

".............While some quasi judicial tribunals fix a day for pronouncement and pronounce their orders on the day fixed, many quasi judicial authorities do not pronounce their orders. Some publish or notify their orders. Some prepare and sign the orders and communicate the same to the party concerned... "

The relevant facts giving rise to the present litigation are that the appellant is an auction purchaser who had given the highest bid for purchase of property no. 17-A, Sector Mahila Udaymi Park-1, Greater Noida, Distt. Gautam Budh Nagar(U,P,) (hereinafter shall be referred as the 'property in question') in public auction conducted by the Recovery Officer attached to Debt Recovery Tribunal-III, Delhi in order to recover over twenty cores of public money found by the DRT to be recoverable from respondents 2 to 6 herein(CDs) in an Original Application No. 58/2013 which had been filed by respondent/CH bank under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act,1993('RDDBFI Act' in short) against the respondents 2 to 6 for issuance of a recovery certificate for recovery of the outstanding dues in the loan account of its defaulting borrower, respondent no. 2 herein.

Upon receipt of recovery certificate from DRT recovery case being RC No. 166/2016 was registered for execution the recovery officer put up the immovable properties, including the property in question, mortgaged with the CH Bank for auction. Two properties were sold in that auction. While the recovery officer confirmed the auction sale in respect of one property which stood successfully auctioned in the auction held on 31.05.2019 but no order of confirmation of auction in respect of the property in question purchased by the appellant herein for a sum of Rs. 2.22 odd crores was passed on 19.09.2019 even though no objections against that sale were filed within the statutory period by any one and alsi despite the fact that a specific application was also moved on behalf of the appellant for confirmation of sale and issuance of a sale certificate in her favour. The recovery officer still did not pass any order of confirmation of the auction sale in favour of the appellant-auction purchaser.

One fine morning some stranger out of the blue surfaced and approached the recovery officer and told him that he was ready to buy the property in question for Rs. 3 crores as against the price of Rs. 2.22 crores at which the appellant herein had purchased the same. The recovery officer obliged that stranger and vide his order dated 15.10.2019 the learned recovery officer recorded that the property in question had been sold at an inadequate price and, therefore, he cancelled the sale in favour of the appellant herein observing that a buyer had come forward to buy the property in question for Rs. three crores inclusive of the dues of NOIDA.

Feeling aggrieved by the cancellation of the sale in her favour by the recovery officer vide his order dated 15.09.2019 the appellant filed an appeal before the learned Presiding Officer of the DRT-III(being Appeal No.34/2019). In that appeal the learned Presiding Officer passed an order which is now under challenge in the present appeal. That order reads under:-

The present appeal has been filed by Mamta Udhwani i.e. auction purchaser in the present matter against the impugned order dated 15.10.2019 passed by Ld. Recovery Officer -II in R.C No. 166/16 whereby the Ld. Recovery Officer -II has put the property for sale and issued sale proclamation dated 15.10.2019.

The brief facts of the case is that the present appellant i.e. Mamata Udhwani is stated to have been bona fide purchaser who purchased the property i.e. industrial property bearing no. 17-A, Sector, MahilaUdaymi Park-1, Greater Noida, Distt. GautamBudh Nagar, U.P, area admeasuring 1239.300 sqmtrs. (hereinafter referred as property in question) in an auction held by the Recovery Officer-II on 31.05.2019 for an amount of Rs. 2.51 crores and the said entire amount has been paid. Infact the five properties were put on auction including the property in question on public action with reserve price of Rs. 2.51 crores on 31.05.2019 and the appellant was declared as successful bidder for an amount of Rs. 2.20 crores with respect to the property in question and deposited an amount of Rs. 33.10 lacs being the balance 15% of the highest bid and thereby deposited an amount of 25% of the sale amount and subsequent to that an amount of 75% of the sale amount i.e. Rs. 1.67 crores has also deposited. However, by the impugned order Ld. Recovery Officer -II set aside the said auction and stated by the ld. Counsel for the CDs that the factory of the CDs may not be sold as Mr. Mahesh Aggarwal, who is ready to purchase the property for an amount of Rs. 2.50 crores, therefore, the earlier price was stated to inadequate i.e. Rs. 2.21 crores. Apparently, the order passed by the Ld. Recovery Officer -II vide order dated 15.10.2019 is illegal and malafide one and the ld. Counsel for the appellant prayed for granting interim injunction.

On the other hand, ld. counsel for the CDs argued that the property was worth more than Rs. 2.20 crores and the intending buyer, i.e. Mahesh Aggarwal was interested to purchase the property in question for an amount of Rs. 2.50 crores, therefore, the ld. Recovery Officer-II rightly passed the impugned order and no ground is made out for granting interim injunction as the property in question has already been put for re-auction.

Ld. counsel for the respondent bank has filed the reply stated that the impugned order suffer irregularly and illegality and accordingly, the got permission to issue sale certificate in the name of highest bidder.

Heard and record has been thoroughly perused.

So far as interim injunction is concerned, the property in question was auctioned on public auction and amount of Rs. 2.20 crores was received. So far as the application of Mr. Mahesh Aggarwal is concerned, the same was moved later on whereas the public auction was already been deposited. Taking into consideration all the facts and circumstances, the impugned order dated 15.10.2019 passed by the Ld. Recovery Officer - II deserves to be stayed, as the legal question is involved and the same has to be decided after hearing all the parties and receiving replies on behalf of the CDs as well. Therefore, the prima facie case is made out in favour of the appellant. Accordingly, the impugned order dated 15.10.2019 passed by Ld. Recovery Officer -II stands stayed till further orders.

Now, the matter stands adjourned for filing reply and re- joinder, if any posted before Registrar on 17.04.2020."

On 08.01.2020 when this appeal was taken up for ex parte hearing the following order was passed by this Tribunal after noting the grievances raised by the learned counsel for the appellant Shri Sanjiv Bhandari:-

"Present: Mr.Sanjeev Bhandari and Mr. Ravi Data, counsel for the appellant

Appellant is seriously aggrieved by an order passed by the learned Recovery Officer attached to DRT-III, Delhi, whereby a concluded auction sale of one property of the CDs in favour of the appellant has been set aside by the Recovery Officer upon an oral objection raised against the sale by the CDs. It is contended that the sale proclamation of various properties of the CDs was issued by the Recovery Officer in order to recover over 10 crores of rupees for which a recovery certificate stood issued by the DRT. It is submitted that the learned Recovery Officer attached to DRT-III, Delhi, whereby a concluded auction sale of one property of the CDs in favour of the appellant has been set aside by the Recovery Officer upon an oral objection raised against the sale by the CDs. It is contended that the sale proclamation of various properties of the CDs was issued by the Recovery Officer in order to recover over 10 crores of rupees for which a recovery certificate stood issued by the DRT. It is submitted that the learned Recovery Officer in a blatant violation of the mandatory provisions of Rules 60 and 61 of the Rules framed under the Second Schedule to the Income Tax Act has entertained the objection against the sale without insisting upon the deposit of the amount of debt recoverable from the CDs as found by the DRT in the bank's O.A. It has also been submitted that the Recovery Officer has also committed violation of Rule 63 of the aforesaid Rules.

Without going into any other aspect of the matter for the time being, I direct the Recovery Officer to come with the recovery file of R.C. No.166/2016 "Indian Overseas Bank Vs. V.D. Signages (P) Ltd. etc"., and also to submit a report as to how the concluded sale was set aside and a fresh sale proclamation was ordered to be issued at the instance of the CDs without insisting compliance of the mandatory Rules 60 and 61 of the Second Schedule to the Income Tax Act by the CDs.."

The Recovery Officer in compliance of the aforesaid direction appeared before this Tribunal alongwith the recovery file and his report which is being re-produced below:-

"A Recovery Certificate dated 4.7.2016 was issued by Hon'ble Presiding Officer, DRT with a mandate to recover an amount of Rs.09,91,17,822 along with cost, expenses and interest @14% simple from the date of filing of O.A. i.e. 03.1.2013.

A sale proclamation was issued on 6.12.2016 by the Forum having reserve price of the property in question (i.e. 17 A, Mahila Udyami Park, Greater Noida, Distt. Gautam Budh Nagar, UP) as Rs.2.40 Crore. Auctions failed hence vide order dated 27.8.2018, under Rule 25(AA) of RDBFI Act, Court Receivers were appointed to take physical possession of the property in question alongwith other properties of CD situated at Ghaziabad and Sikandrabad, 2018. The physical possession of all mortgage properties of CDs were taken by the Court Receivers as appointed by the Forum.

Counsel for CH Bank filed the details of mortgage properties including plant and hypothecated machinery in tablular manner vide diary no.3904 dated 27.3.2019, in which the Fair market value of property in question was indicated as Rs.2.19 Crore and Forced Sale Value as Rs.1.75 Crore. Sale Proclamation was issued vide order dated 27.3.2019 and the reserve price of the property in question was kept as Rs.2.19 Crore.

The auction was held on 31.5.2019 and for aforesaid property, the highest bid of Rs.2.20 Crore was given by Smt. Mamta Udwani against the Reserve price of Rs.2.19 Crore.

CD filed application vide diary no.13766 dated 29.8.2019 and submitted as they have submitted an OTS proposal but no response has been received by CH Bank. CD submitted that they had already informed CH Bank about worth of their Factory and they have a buyer for their Factory (the property in question) for Rs.3 Crore (including the dues of NOIDA Authority) and requested this Forum to issue direction of CH Bank to file present status of their mortgage properties.

CD further submitted that highest bid offered for the property in question is less than its real worth and inadequate for confirmation. To support their claim, Sh. Mahesh Aggarwal, an intending buyer as mentioned by CD, filed an affidavit/undertaking alongwith DD No.42705 dated 14.10.2019 worth Rs.75 Lakhs as 25% for an offer of Rs.3 Cr. (including the dues of NOIDA authorities) in the DRT to show his bonafide and it was further submitted that the balance 75% amount would be deposited on or before 15.12.2019, failing which he will abide by the punishment awarded by the Tribunal.

An speaking order was passed on 15.10.2019 by this Forum that in view of observation of Hon'ble Supreme Court in the matter of Navalkha & Sons Vs. Sri Ramanya Das & Ors 1970 AIR 237, 1970 SCR(3) 1' that the condition of confirmation by the Court, operates as a safeguard against the property being sold at inadequate price and it is the duty of the Court to satisfy itself that having regard to the market value of the property, the price offered is reasonable and that is because, the Court is the custodian of the interests of the Company and its creditors.

In the order dated 15.10.2019 of the Forum, it has been held that the property in question has the worth more than the bid amount and has the potential to fetch more sale consideration which needs to be explored by all possible means and consequently it is also held that bid received from Smt. Mamta Udwani for Rs.2.20 Crore is not adequate. Further in consonance with the terms & conditions (Sl.no.13) as stipulated in the ........Sale Notice dated that the Recovery Officer has the absolute right to accept or reject any bid or bids or to postpone or cancel the e-auction without assigning any reason, because vide aforesaid order dated 15.10.2019, the bid of Rs.2.20 Crore of Smt. Mamta Udwani was. by the Forum.

Fresh sale proclamation was issued with Reserve price of property as Rs.2.51 Crore. The draft of Rs.75 Lakh of intending bidder was handed over to CH Bank.

It was also directed vide order dated 15.10.2019 that the prospective bidder has to participate in the E-auction for the property in question after completing the terms & conditions of the Sale Proclamation and the demand draft of Rs.75.00 lakhs deposited by him shall be considered as EMD and part payment towards the bid amount if he declared as highest and successful bidder. It is also made clear that if Sh. Mahesh Aggarwal, the prospective bidder does not participate in the auction for any reason whatsoever or does not comply with the terms & Conditions of Sale Proclamation notice, the amount equivalent to EMD shall be forfeited from the deposit made by him.

It is also open for applicant Ms. Mamta Udwani (erstwhile highest bidder) to participate in the public E-Auction.

As on date, the cumulative outstanding recoverable dues of CDs are about 20 crore and the aggregate value of available mortgage properties as per last Sale proclamation dated 25.11.2019 is only R s.6.03 Crore."

Appearing for the appellant-auction purchaser their learned counsel Mr. Sanjiv Bhandari and Mr. Ravi Data made a very serious grievance and which grievance according to their submission was not only of theirs but of many other members of the bar who appear before this particular recovery officer Mr. Vikash Jaitly, whose illegal and arbitrary orders have given rise to the present unnecessary litigation was that Mr. Vikash Jaitly is not functioning as a quasi judicial authority which is expected to function in a judicious manner but he is acting not only in the present case but in general while performing his duties as a recovery officer in an 'autocratic' manner throwing to the winds the provisions of law which govern the functioning of recovery officers. Refferring to the report submitted by Mr. Vikash Jaitly in compliance of the direction given to him by this tribunal on 08.01.2020 Mr. Bhandari and Mr. Data submitted that this tribunal had asked him to explain as to how he cancelled the sale lawfully conducted in favour of the appellant and with which he himself was fully satisfied was cancelled ignoring the compliance of the mandatory provision of pre- deposit of the debt in question by the borrower(CDs) It was also asked from him as to why the sale was not confirmed in favour of the appellant within the statutory period of thirty days from the date of auction, which in the present case was 31.05.2019, when undisputedly nobody including any of the CDs-respondents 2 to 6 herein, had come forward to file any objection petition either under Rule 60 or Rule 61 of the Rules framed under Second schedule to the Income Tax Act under which Rules recovery proceedings for recovery of public money as ordered by DRTs in O.As of banks and financial Institutions filed under Section 19 of the RDDBFI Act are to be governed, the stand taken by Mr. Jaitly was 'meri marzi'. Learned counsel submitted that Mr. Jaitly has the audacity to tell this Tribunal that it was his 'marzi' whether to confirm the sale in favour of the appellant and without even responding to the querry also raised by this Tribunal as to why compliance of the mandatory requirement of pre-deposit he has chosen not even to refer to that querry what to say of giving any explanation. Learned counsel further submitted that that none of the CDs had ever raised any objection regarding the legality of the auction sale in favour of the appellant before Mr. Jaitly then how could he cancel the sale conducted by himself as if he could act as the appellate authority over his own decisions. In these circumstances, learned counsel submitted, the only inference which could be legitemately drawn against Mr. Vikash Jaitley was that he wanted to unduly favour a third party who had come forwarded much after the date of auction in favour of the appellant to offer price of Rs. three crores which Mr. Jaitley considered to be more than the price of Rs. 2.22 crores at which the appellant had purchased the property n question when in fact there was no increase at all offered by the third party as the price of three crores offered was inclusive of the dues of NOIDA also which as per the Mr. Jaitly's file are to the tune of approximately Rs. 60 lacs.

As far as the impugned order passed by the learned Presiding Officer of first appellate forum(DRT) is concerned the grievance raised by the learned counsels for the appellant-auction purchaser was that surprisingly even after coming to the conclusion that the decision of the recovery officer Mr. Vikash Jaitly to re-auction the property in question to accommodate a third party was not justified has simply stayed the operation of that order of the recovery officer instead of quashing the same and directing the recovery officer to confirm the sale in favour of the appellant and for issue of sale certificate in her favour. The argument was that the learned Presiding Officer has given a very long date for hearing the appeal observing that a legal issue is involved without specifying the same which could be decided after giving all parties to complete their pleadings totally ignoring the fact that the appellant is already out of pocket of over two crores of rupees since last year and the appellant is suffering huge financial loss each day. It was also contended that the bank had given in writing before the recovery officer that sale certificate should be permitted to be issued in favour of the auction purchaser and sale proceeds to be appropriated has observed that parties needed to be heard in detail. It was submitted that as far as the CDs are concerned they had not at any stage raised any objection against the sale of the property in question though they had raised some objection regarding sale of their agricultural land so there was no occasion for giving any hearing to the CDs and it was a fit case where the impugned order of the recovery officer could be quashed straightaway by the learned Presiding Officer and the appeal disposed of immediately to avoid unnecessary loss to the appellant on account of loss of return on her investment. It was further contended that it is not for the first time that this particular recovery officer(Mr. Vikash Jaitly) has acted in a totally autocratic manner in the present case in other cases on his board he has been acting as if the 'recovery court' presided over by him is his 'personal fiefdom'. It was appointed out that in one case relating to a property in Sainik Farms, New Delhi the occupant of that property had cleared the entire dues of the mortgagee bank of that case since he was having an agreement to sell in his favour executed by the bank's defaulting borrower. Despite the fact entire dues of the CH bank had been satisfied the recovery officer in a totally arbitrary manner dispossessed the occupant of the mortgaged property. That matter reached the Hon'ble Delhi High Court by way of a writ petition at the instance of the person who stood dispossessed by Mr. Vikash Jaitly, recovery officer and in that writ petition(being W.P.(C) No.6546.2019) the Hon'ble High Court vide its order dated 31.05.2019 directed the recovery officer to forthwith deliver back the possession of the property in dispute to the writ petitioner from whom possession had been taken. It was stated that before approaching the High Court the dispossessed person had approached this appellate Tribunal for a direction to the recovery officer to deliver back possession to the dispossessed person but since at that time the appeal filed against the order of Mr. Vikash Jatily refusing to deliver back possession was pending before the Presiding Officer of DRT-III, where the appeal of the present appellant-auction purchaser is also pending, this tribunal had simply remanded back the matter to the Presiding Officer to decide the appeal and pass appropriate orders and no direction was given to the recovery officer to deliver back the possession to the appellant of that case. It was pointed out that the Hon'ble High Court had disposed of the writ petition without even issuing any notice of that writ petition of Darayus Nariman to the borrowers/CDs of that case. Learned counsel submitted that in the present case also the CDs have no role to play as far as the auction sale of the property in question purchased by the appellant- auction purchaser is concerned and so this appellate tribunal itself can proceed to dispose of the appellant's appeal pending before DRT-III, Delhi and issue necessary direction to the recovery officer to confirm the auction sale in favour of the appellant and also to issue necessary sale documents like sale certificate etc. and also for delivery of title documents which the respondent bank was always ready to hand over to the appellant being the successful auction purchaser. Thus, the prayer of the learned counsels for the appellant was that in the present case also there is no need of giving any hearing to the CDs of the present case as that would further add to the woes of the appellant and would amount to perpetuating the legal mistake committed by the recovery officer as well as the learned Presiding Officer by showing undue indulgence to the CDs by hearing them without their being called upon to comply with the mandatory requirement of pre-deposit as provided under Rules 60 and 61 of the Rules under Second Schedule of the Income Tax Act.

The order passed by the Hon'ble High Court in the writ petition of another victim of Mr. Vikash Jaitly's alleged 'autocratic' functioning, as submitted by the learned counsel for the appellant, is re-produced below:-

"W.P.(C.) No. 6546/2019 & CM No.27710/2019 W.P.(C) No. 6638/2019 & CM No. 28049/2019 1. Issue notice. Counsel for the respondent no.1 accepts notice. 2. In view of the order that we propose to pass, we do not consider it necessary to issue notice to the other respondents. 3. The petitioners are aggrieved by the order dated 27.5.2019 passed by the learned Debt Recovery Appellate Tribunal in Misc. Appeal No. 121/2019 arising out of Appeal No. 6/2019. The said appeal had been preferred by the petitioners, being aggrieved by the order dated 27.2.2019 passed by the DRAT-III, Delhi. 4. The petitioners claim to have entered into an Agreement to Sell with the owners/debtors i.e. respondents no. 3 and 8, against whom respondent no.1-bank had initiated the Original Application to claim recovery of debts due to it. The Original Application was allowed and a recovery certificate was issued against the debtors. The property bearing no. 127-A, Central Avenue, Sainik Farms, New Delhi in respect whereof the petitioners claimed to be the agreement purchasers, was a property mortgaged to secure the loan obtained by the debtors. With a view to effect recovery, the Recovery Officer was appointed by the DRT, who took possession of the said property from the petitioners on 28.01.2019. 5. With a view to secure its interest under its alleged agreement to sell, the petitioners deposited the entire amount claimed by the respondent-bank under the recovery certificate. Thus, so far as the claim of the respondentbank is concerned, the same stands completely satisfied. 6. There are inter se disputes between the petitioners and the original W.P.(C.) No. 6546 & 6638/2019 Page 3 of 4 owners, in respect whereof the petitioners claim for specific performance of agreement to sell, as well as the suit of the owners to claim cancellation thereof, are pending. 7. On 27.2.2019, the Debt Recovery Tribunal passed an order, which shows that the Tribunal is examining the statement of account filed by the respondent-bank with regard to the quantification of the liability of the borrowers. That order was assailed before the Ld. DRAT by the petitioners. The learned DRAT while passing the impugned order has remanded back the proceedings to the DRT and directed that since the petitioners have settled the claim of the bank, further proceedings towards sale of the property in question be stayed. However, no direction has been issued with regard to the delivery of possession of the property to the petitioners, despite the fact that the respondent-bank has made a statement that its claim stands satisfied and the possession of the property was taken by the Recovery Officer from the petitioner. 8. Learned counsel further submits that in the proceedings before the DRT in the SA, the respondent-bank had agreed to deposit the title deeds in this Court. 9. Since the admitted position is that the possession of the said property was with the petitioners before it was taken over by the Recovery Officer; the possession of the said property was taken over by the Recovery Officer only with a view to proceed with the auction sale of the said property; the respondent-bank has stated that its claim is fully satisfied meaning thereby that the auction sale of the said property is no longer required to be undertaken, there was no purpose in allowing the possession of the property W.P.(C.) No. 6546 & 6638/2019 Page 4 of 4 to remain with the Recovery Officer. In our view, the DRAT should have directed the same to be restored to the petitioners since the same was taken from the petitioners. 10. Accordingly, we dispose of this petition with a direction to the Recovery Officer to forthwith deliver the possession of the property to the petitioners. The respondent-bank shall deposit the original title deeds relating to the property in the suit and the counter-claim proceedings which are pending in this Court, and the release of the said title deeds shall abide by the decision in the suit/counter-claim. 11. The aforesaid direction is agreeable to the respondent-bank, and in our view, there is no prejudice caused to the other respondents/ owners, since merely the status quo ante has been restored as it existed before the Recovery Officer took over the possession of the property from the petitioners. The rights/claims of the petitioners and the owners i.e. Respondent Nos. 3 and 8 in the respect of the said property are preserved. 12. The petition stands disposed of."

It was also submitted that rights of a third party coming forward to purchase the auctioned property for a higher price without having participated in open auction have been crystallised very elaborately in a judgment 6th September, 2018 of Gujarat High Court in "Rammohansingh Badshahsingh ... vs Debts Recovery Appellate Tribunal" (SPECIAL CIVIL APPLICATION NO. 3131 of 2018).

After giving my due consideration to the submissions made by the two learned counsel for the appellant, the record of the recovery officer which was summoned I am of the view that since appeal against the impugned order dated 15.10.2019 of the recovery officer whereby the auction sale in favour of the appellant has been set aside/cancelled is still pending disposal before the learned Presiding Officer of the DRT-III, Delhi it will be appropriate and in the interest of justice that the first right of deciding the various important and serious issues raised and highlighted by the learned counsels for the appellant is not taken away from the learned Presiding Officer of the DRT and it should at first instance be left to the Presiding Officer to take an independent decision. Any observation made by this tribunal even prima facie one is likely to enter the mind of the learned Presiding Officer and there is likelihood of his mind getting influenced even by the prima facie observation is appellate authority. That eventuality should thus be avoided.

This tribunal however appreciates the anxiety of the appellant that since she has already paid over two crores for buying the property in dispute the learned Presiding Officer of the DRT should have been more sensitive in such a situation by disposing of her appeal itself at the earliest instead of keeping the appeal at the bottom by fixing a very long date and that too only for completion of pleadings when the CH bank has already given in writing that it does not have any objection if sale is confirmed in favour of the appellant so that sale proceeds can be appropriated in the loan account of the defaulting borrowers. The learned Presiding Officer ought to have disposed of the appellant's appeal within a short period of time.

The appellant has raised very serious grievances against the manner the matter has been dealt with the recovery officer Shri Vikash Jaitly. Those grievances/allegations do need a deep examination/investigation by the learned Presiding Officer of DRT who not only is the first appellate authority of the recovery officers attached to his tribunal but he also has been conferred with the power of superintendence over the overall functioning of the recovery officers.

This appeal is accordingly disposed of with a direction to the learned Presiding Officer of DRT-III, Delhi to decide Misc. Appeal No.34/2019 on his board within a period of 45 days from the date of receipt of this order. I f necessary the matter can be preponed by him so as to comply this direction. While deciding the appeal the learned Presiding Officer shall specifically deal with the following aspects also in addition to what would be submitted before him by the parties:-

(a) Since the property in question appears to be leasehold owned by NOIDA it would be examined as to why the recovery officer did not mention in the sale proclamation that property being leasehold the successful bidder will also have to pay to NOIDA its dues on account of unearned increase etc. which as per the impugned order of the recovery officer himself were to the tune of Rs. 60 lacs which the third party produced by the CDs had offered to pay. Learned Presiding Officer will give his view as to why the recovery officer Shri Jaitly did not demand NOIDA dues from the appellant-auction purchaser. Was it to favour her and give undue financial benefit to her by ignoring the right of NOIDA to get unearned increase which normally is the clause in every lease deed in when leasehold lands are allotted on lease. The learned Presiding Officer shall also examine as to why the recovery officer did not confirm the sale in favour of the appellant when undisputedly no objections were raised before him by any one within a period of one month. It will also be examined as to why sale in favour of the appellant was set aside at the oral prayer of the CDs made after expiry of statutory period of one month prescribed for filing objections against an auction sale. Why the recovery officer did not insist upon payment of pre-deposit as provided under Rules 60 and 61 before entertaining the prayer of the CDs for cancellation of sale. If the learned Presiding Officer comes to the conclusion that the recovery officer Shri Vikash Jaitly committed any illegalities in the matter of conduct of auction and then its cancellation with some ulterior motives then the learned Presiding Officer shall also suggest in exercise of his power of superintendence over the functioning of his recovery officers.

A copy of this order be sent to DRT-III, Delhi as well as to the recovery officer whose file shall also be returned back to him. Thos order shall be uploaded also on the web site of DRAT, Delhi and copies despatched to parties also. It will be open to the appellant to communicate ths order to the counsel for the CDs/bank also by e-mails.