Oriental Bank Of Commerce vs Manju Jain And Ors.

P.K. Bhasin, J

Issue notice to respondents.

Counsel Mr. Bhoumik Nayyar appears for respondents 1 and 2, who has filed caveat also, and accepts notice. Caveat accordingly stands discharged. Mr. Sumeher Bajaj accepts notice on behalf of respondents 6 and 7. As far as other respondents are concerned, Counsel for appellant Bank submits that there is no need of serving them as they are no more participating in the proceedings before the Recovery Officer (R.O.) and the controversy between the Bank and respondents 1 and 2 centres around the action of the R.O. in putting the property of respondents 1 and 2 to auction and they are only fighting the legal battle to protect their property.

Since the point involved is short, with the consent of the Counsel for the parties, the appeal has been finally heard today itself.

Respondents 1 and 2 have been claiming before the R.O. that the property No. C-780, New Friends Colony, New Delhi, which was sought to be sold in the recovery proceedings for liquidating the dues of the appellant Bank for which there was a decree passed many years back by the Hon'ble Delhi High Court and in respect of which decree, in due course of time, a Recovery Certificate came to be issued by the DRT after coming into force of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, belonged to them and could not be put to sale as the same was never mortgaged to secure the loan taken by respondent No. 3 Company from the Bank. The R.O. rejected the objections vide his order dated 13.5.2016. Feeling aggrieved, respondents 1 and 2 filed an appeal before DRT-III, Delhi. The learned Presiding Officer of DRT-III, however, without issuing any notice of the appeal to the appellant Bank, decided to set aside the order of the R.O. dismissing the objections in respect of the aforesaid property, vide the impugned order dated 16.8.2016 and passed an order remanding back the matter to the R.O. with the direction to decide the objections afresh and pass a speaking order after examining the evidence in support of objections and keeping in mind the observations made in its order dated 17.6.2016 also. Appellant Bank naturally felt aggrieved with the setting aside of the order which had been passed in its favour by the R.O., by an ex parte order of the learned DRT.

Counsel for the appellant submits that the grievance for the present is that the respondents' appeal could not have been allowed without notice to the appellant Bank and the learned DRT went wrong in granting relief to the appellants before it, without notice to the appellant Bank.

The submission made on behalf of the appellant Bank could not be seriously countered by the learned Counsel for the respondents. Of course, it was their submission that no prejudice has been caused to the appellant Bank by the impugned order inasmuch as all that has been done by the learned DRT is to direct the R.O. to pass a speaking order after examining the entire material in terms of the impugned order. It has also been submitted that in case this Tribunal feels inclined to set aside the impugned order for the reason that the appellant Bank was entitled to be heard and the matter is to be remanded back to the DRT with a direction to pass a fresh order after hearing all the parties concerned, then the proceedings before the R.O. for proposed sale of the aforesaid property should be stayed since that legal protection against sale had all along been available to respondents 1 and 2 in view of the settled legal position which does not permit sale of any property during the pendency of the objections before the R.O. against the recovery certificate.

After giving my thoughtful consideration to the entire aspect of the matter, I am of the view that the impugned order needs to be set aside and a direction needs to be issued to the DRT concerned for disposing of the Appeal No. 43/2016 afresh after giving a fresh hearing to the appellants before it as well as to the appellant Bank herein.

As far as the prayer for interim relief against sale of the property in question is concerned, I am of the view that this prayer at the first instance can be made before the DRT itself and if made, the DRT would decide that request in accordance with law since this Tribunal has not gone into the merits of any aspect of the matter. It is needless to state that in case interim relief is declined by the DRT to respondents 1 and 2, they would be at liberty to have recourse to the remedies which may be available to them in law. Parties shall appear before the DRT on 5.9.2016, on which date fresh date of hearing shall be fixed by the learned Presiding Officer. Considering the fact that already sufficient time has been consumed in this legal battle, all efforts shall be made by the DRT to dispose of the appeal as expeditiously as possible.

Copy of this order be given Dasti to both the sides.