Mohanjit Singh Mutneja And Ors. vs Bank Of Baroda And Ors.

S.N.H. Zaidi, J

Heard parties, Counsel. Today, this matter is listed for overseeing the compliance of the order dated 20.8.2013, whereby the appellants were directed to deposit certain amount in compliance of the requirement of the second proviso to Section 18(1) of the SARFAESI Act. Mr. Bhandari points out that pursuant to that order an amount of Rs. 35 lacs was duly deposited on 25.8.2013, but out of the remaining amount of Rs. 78.84 lacs, a sum of Rs. 10 lacs could only be deposited as the appellants could not arrange the total amount due to death of appellants' uncle and hospitalization of their mother. He also points out that an application seeking extension of time for depositing the remaining amount (I.A. No. 741/2013) was, therefore, filed but the same was dismissed in default on 27.9.2013 and the amount of Rs. 35 lacs deposited with this Tribunal was allowed to be released in favour of the Bank, which was, however, put on hold by order dated 3.10.2013. It is also pointed out by him that subsequently applications (I.A. Nos. 751/2013 and 790/2013) seeking recall of the order dated 27.9.2013 and restoration of I.A. No. 741/2013 have been filed. Mr. Gupta, on the other hand, points out that as the appellants had defaulted in the repayment of the loan amount, the Bank had filed the O.A. against them for its recovery and during the pendency of O.A., the Bank also took measures under the SARFAESI Act, which were challenged by the appellants by filing S.A. No. 408/2008 and the said S.A. was finally disposed of by the Tribunal below vide order dated 27.1.2009. He further submits that the said order was challenged by the Bank in Appeal No. 76/2009, which was allowed by this Tribunal by order dated 18.1.2013 and the Bank was given liberty to proceed to recover the outstanding amount in accordance with the SARFAESI Act, after the adjustment of the deposited amounts.

Mr. Gupta also submits that when the Bank approached the learned CMM under Section 14 of the said Act for obtaining possession order and the learned ACMM, vide order dated 11.2.2013, appointed a Receiver for taking the possession of the property in question and the Court Receiver issued possession notice dated 23.4.2013, the appellants filed another S.A. ( No. 182/2013) and challenged the same. He points out that the learned Tribunal below while granting indulgence to the appellants, by order dated 3.5.2013 directed them to deposit 25% of the outstanding amount within the given time in two equal instalments, but the appellants deposited Rs. 10 lacs only as the first instalment and did not deposit any further amount and moved application for extension of time. He further submits that the learned Tribunal below has disposed of the application seeking extension of time as well as the S.A. by the order impugned with the observation that it lacks jurisdiction in view of the order dated. 18.1.2013 of this Tribunal passed in the appeal.

Mr. Gupta also submits that while disposing of the application filed for waiver of the requirement of the deposit under Section 18 of the SARFAESI Act, this Tribunal had also directed the appellants, vide order dated 20.8.2013, to deposit Rs. 1,13,84,000/- by the given time schedule in three instalments and the appellants have deposited only one instalment of Rs. 35 lacs and a further sum of Rs. 10 lacs in compliance of the said order and have not deposited the directed amount and the time allowed for depositing the same has since expired.

I have considered the submissions of the parties' Counsel on applications I.A. No. 151/2013 and 790/2013 filed by the appellants seeking recall of the order dated 27.9.2013 and for keeping the order qua the release of Rs. 35 lacs in abeyance and for restoration of application I.A. No. 741/2013. Mr. Bhandari has pointed out that the appellants'/applicants' Counsel Mr. Amit Dhall could not appear on that date as he was busy before some other Court and he has filed his personal affidavit in respect thereof along with I.A. No. 790/2013. It is also pointed out that application I.A. No. 751/2013 has been filed to recall only that part of the order whereby the amount deposited by the appellants was ordered to be released in favour of the Bank.

The aforesaid ground of absence of Mr. Dhall on 27.9.2013 appears sufficient and since pursuant to that order the amount has not been released to the Bank, therefore, both the applications are allowed and the order dated 27.9.2013 is recalled.

However, hearing the parties on application I.A. No. 741/2013 filed for extension of time for depositing the amount as per order dated 20.8.2013 of this Tribunal, I am of the view that the grounds for failure to deposit the remaining amount in time does not appear to be sufficient. No further extension of time can, therefore, be allowed for the same. The application is accordingly dismissed.

Since the appellants have not complied with the mandatory requirement of the deposit as per the second proviso to Section 18(1) of the SARFAESI Act and has not deposited the directed amount, the appeal cannot be entertained and the same is liable to be dismissed. The appeal is dismissed accordingly. Mr. Gupta points out that the O.A. filed by the Bank has also been disposed of and an R.C. for the recovery of the outstanding amount has been issued in favour of the Bank, the deposit of amounts made by the applicants in this Tribunal be released to the Bank. The said amount shall remain deposited with this Tribunal and the C.H. Bank may approach the R.O. for invoking Section 28(4) of the RDDBFI Act.

Copy of this order be furnished to the parties as per law and be also sent to the DRT concerned.