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Judgment
Ashok Menon, Chairperson
The appellants who are the borrowers are in appeal impugning the order dated 25.03.2022 in (Interlocutory Application (I.A.) No. 374 of 2022 in Securitisation Application (S.A.) No. 25 of 2022 on the files of the Debts Recovery Tribunal-III, Mumbai (D.R.T.) dismissing the I.A. and declining to grant any restraining order against the respondent bank in proceeding to conduct any e-auction about the recovery action initiated by the bank against the borrowers under the provision of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(“SARFAESI Act”, for short).
The present application is for amendment of the cause title of the appeal incorporating the bank in place of the present first respondent who is the authorised officer of the bank.
The Ld. Counsel appearing for the appellants submits that an appropriate application is also being filed to amend the S.A.
The respondent bank has vehemently opposed the application for an amendment stating that the amendment would be prejudicial to the bank and that the specific defence taken by the bank is that the bank has not been impleaded as a party. The Ld. Counsel appearing for the respondent bank relies on the decisions in Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka (2013) 9 SCC 485, Harikishan Chandak & Ors vs. Syed Mazaruddin Syed Shahbuddin through Lrs. &Ors 2023 SCC OnLine Bom. 955 and Sarvindar Singh &Ano. vs. Chief Manager, Punjab National Bank &Ors. 2019 SCC OnLine Del. 11782 to argue that amendment cannot be allowed and that the authorised officer is not the proper person to represent the bank and in the absence of the bank, the application should fail. It is also contended that without amendment of the S.A., substitution of the authorised officer with the bank in the appeal memorandum would not be sufficient.
There is no dispute that amendment to the plaint is possible at any stage of the proceedings. The authorised officer was representing the bank in the Sarfaesi action taken against the borrowers and hence, impleaded as the first respondent in the S.A. It is true that the amendment of the appeal memorandum would not be sufficient and would also not cure the defect of non-impleadment of the bank as a proper party. Such a plea has to be taken before the Tribunal below in the S.A. The appeal is filed challenging the interlocutory order in the S.A. declining to grant any protection to the appellants. The property has already been sold and the auction purchasers are also in the party array in this appeal. The S.A. was filed before the conducting of the e-auction. The S.A. will have to be amended in case the validity of the sale is challenged.
Under the circumstances, I find that allowing the application for amendment of the appeal memorandum would not serve any purpose. It is also not proper to decide whether there is any non-joinder or misjoinder of the parties in the S.A. at the stage of the Misc. Appeal.
As a result, this application for amendment is dismissed. But liberty is granted to the appellants to bring about a necessary amendment to the cause title of the S.A. which shall be decided by the D.R.T.
The appeal has been taken on file on deposit of the waiver amount and the appeal arises from an interlocutory order declining to grant a protection against the sale scheduled to take place. The sale has already taken place and the appellant will have to apply for amendment of the S.A. to incorporate the prayer for setting aside the sale and hence, the Misc. Appeal itself is disposed of with a direction to the D.R.T.-III, Mumbai to dispose of the S.A. as expeditiously as possible.