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Judgment
The appellants, who were the security applicants before the DRT, were aggrieved by an order dated 10.01.2018 passed in their Securitisation Application (S.A.) No. 34/2012 under Section 17(1) of the SARFAESI Act which stood disposed of earlier vide final order dated 07.01.2016 and so they had filed the present appeal. The order dated 10.01.2018 was passed on a miscellaneous application (I.A.No.2026/2017) filed by the appellants herein in the disposed of S.A.
The order dated 10.01.2018 which inly is under challenge in this appeal reads as under:-
"IA(M) No. 2026 of 2017 has been moved on behalf of Shri Kanwaljeet Singh under Section 17(7) of the SARFAESI Act, 2002 read with Section 19(25) and Section 22 of the RDDBFI Act, 2003 read with Rule 18 of DRT Procedure Rules, 1993 alleging that the notice under Section 13(2) of the SARFAESI Act dt. 10.06.2010 claiming an amount of Rs. 35,16,073/- issued and thereafter the applicant has been regularly depositing the amount with the respondent bank and by this time an amount of Rs. 32,29,512/- from 10.06.2010 up till 24.06.2017 has been received by the bank but the bank has already taken physical possession of the residential property i.e. property bearing no. 10, Plot-D, First Floor, Bali Nagar, New Delhi.
It is further submitted that the applicant was unable to deposit and comply with the order dated 24.12.2016 passed by this Tribunal due to the reason that his Mother was suffering from Cancer and huge expenditure incurred thereon, therefore the failure was bonafide one.
The id counsel for the applicant further submitted that the respondent bank has not proceeded to auction the property and value of reserve price fixed for Rs. 54 lacs, but no mandatory notice was issued in respect of the fact that the respondent bank was bound to adhere of the guidelines under Rule 8(6) of the Security Interest Enforcement Rules, 2002. Accordingly, applicant prayed that the sale of the property which is fixed for 10.01.2018 be stayed and time be extended for deposit of the amount.
On the other hand, the bank has filed a detailed reply stating that the present application is liable to be dismissed as material fact suppressed from the Hon'ble Court. The applicant suppressed the fact that vide order dated 28.06.2017 passed by this Tribunal it was specifically mentioned that in case the cheque of Rs. 3 lacs dated 03.07.2017 was bounced, the respondent bank was at liberty to take possession of the property in question. The applicant again moved an application i.e. IA no. 1728/2017 before this Tribunal and vide order dated 28.11.2017 the said IA was dismissed for non-prosecution.
The respondent bank denied all the submissions made on behalf of the applicant in the present application stating that the present application is nothing but abuse of due process of law, hence no further extension can be granted and accordingly, prayed for dismissal of the present application.
Heard both the counsels at length and perused the record. In the present matter an S.A. no. 34 of 2012 was filed on behalf of M/s Sajjan Chemicals Corporation through its proprietor Shri Kamaljeet Singh, wherein final order passed on 07.01.2016, vide which the applicant was directed to deposit a sum of Rs. 10 lacs along with interest @13.50% simple, on reducing basis to be charged from the date of NPA till the date of realization within a period of 30 days. It was also made clear that in case of default on the part of the applicant, the respondent bank shall be at liberty to proceed further in accordance with law.
The said order was not complied with by the applicant and subsequently the applicant moved one application being I.A.(M) No. 1001/2017 wherein order dated 28.06.2017 passed by this Tribunal and the amount of Rs. 30 lacs assessed to be payable by the applicant and it was also mentioned that today applicant is paying Rs. 7 lacs, out of which DD for Rs. 4 lacs and Rs. 3 lacs through cheque dated 03.07.2017 and in case the above said cheque is bounced the respondent bank is at liberty to take possession of the property in question and receiver was restrained from taking the possession of the property in question meanwhile. It was also made clear that in default the respondent bank is at liberty to take possession of the property in question through the same very Receiver and accordingly the said IA (M) disposed of. Thereafter, another IA (M) no. 1728 of 2017 as filed which was dismissed for non-prosecution.
The Id counsel for the applicant contended that about an amount of Rs. 32 lacs already been paid and the calculation of the interest was not made by the respondent bank in accordance with the order dated 07.01.2016, whereas they have got prepared the interest payable thereon through the Chartered Accountant and only a sum of Rs. 18,38,457/- stands due against the applicant, therefore, wrong calculation has been made.
On the other hand, the Id counsel for the respondent bank vehemently argued that more than Rs. 54 lacs is due against the applicant, and the property in question has already been auctioned for a sum of Rs. 63 lacs today itself. Thus, the present applicant has no right and title on the said property onwards. It is admitted fact on the part of the bank that the calculation in the present matter was not made in accordance with order dated 07.01.2016 passed by this Tribunal and the same was made on contractual basis. On perusal of the order dated 07.01.2016, it is apparent that though the time was given to the present applicant to pay an amount of Rs. 10 lacs along with interest @13.50% p.a. and that was to be calculated in accordance with the judgement "CBI Vs. Ravindra" and a default clause was there that in default the bank shall be at liberty to proceed in accordance with law.
As per the argument advanced by the Id counsel for the respondent bank, a sum of Rs. 54 lacs is due whereas the applicant has already made payment of approximately Rs. 32 lacs which is also admitted fact and as per the calculation of the applicant a sum of Rs. 18 lacs are due. Even in the order dated 28.06.2017, this Tribunal has assessed the amount due against the present applicant i.e. 30 lacs. Through on said date DD of Rs. 4 lacs was paid, but the cheque dated 03.07.2017 amounting to Rs. 3 lacs was bounced. Therefore, the bank proceeded, to sell the property, in accordance with law. However, at this stage the Id counsel for the applicant stated that he is ready to make payment of Rs. 54 lacs i.e. as per the calculation by the bank though it has been disputed, therefore, one opportunity can be given to the present applicant to deposit the said amount with the bank by tomorrow i.e. 11.01.2018 and in case the same is being deposited the sale shall not be confirmed. However, if the same is not being deposited by 11.01.2018, then the respondent bank shall be at liberty to confirm the sale. The bank shall submit the statement of account on contractual basis to the applicant and shall refund the amount, if any excess, to the applicant.
In view of the above, the present I A(M) is disposed of. File be consigned to records."
The appellants herein had taken some loan from respondent Bank and to secure the repayment of loan they had created equitable mortgage of the property in question. Since they had defaulted in repayment of the loan money the lending bank after declaring their account as NPA took recourse to the remedies under SARFAESI Act as a secured creditor in respect of the mortgaged asset. At that stage the appellants filed an S.A. before the DRT. In that S.A. certain orders were passed giving opportunity to the appellants to clear the dues of the bank. Finally the S.A. was disposed of on 07.01.2016 with some directions to the security applicants regarding payment of the unpaid loan dues of the bank.
Since the bank considered that the appellants had not complied with the final order of the DRT it started steps to auction the mortgaged property. At that stage the appellants had filed an application no.2026/2017 in their disposed of S.A. One of the reliefs claimed was for stay of the auction to be held on 10.01.2018. The auction however took place on that date and the present applicants of the two applications which are being disposed of by this order were the highest bidder. The DRT had on 10.01.2018 passed the order which has already been re-produced.
The applicants-auction purchasers now seek their impleadment in the present appeal and a direction to the bank to issue necessary sale certificate in their favour.
In my view, there is no necessity of impleadment of the auction purchasers, one of whom happens to be a senior officer in the respondent bank which had put up the property in question to auction sale, in the present appeal which has arisen out of some order passed by DRT in a disposed of S.A. In case the auction purchasers feel that the bank is not giving possession of the property auctioned by it and purchased by them and is not issuing sale certificate also they can always start independent legal fight against the bank for seeking appropriate reliefs which they feel they are entitled to get as successful auction purchasers
Both the IAs (346/2018 & 969/2018) filed by the auction purchasers are accordingly dismissed. However, it is clarified that in case the auction purchasers initiate any independent legal proceedings against the bank in respect of their rights as auction purchasers of the property in question rejection of present two applications will not come in their way since this Tribunal has not gone into the merits of their grievances in these proceedings.