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Judgment
Phoenix ARC Private Ltd. has filed the Miscellaneous Application No. 926/2014 seeking transfer of S.A. No. 436/14, which is pending before the DRT-II, Chandigarh to DRT-II, Delhi. The prayer for transfer is pressed on the ground that the DRT-II, Delhi has already decided an S.A. filed by some similarly placed third parties, which has been dismissed and the appeal filed by the said third parties against that order is pending before this Tribunal.
On similar ground, prayer is made by the present applicant to transfer S.A. Nos. 438/2014 - Deepak Kumar & Anr. v. Phoenix ARC Private Ltd. & Ors., 490/2014 - Sanjay Bharti & Anr. v. Phoenix ARC Private Ltd. & Ors., 488/2014 - Surinder Singh Marwah & Anr. v. Phoenix ARC Private Ltd. & Ors. and 489/2014 -Sunil Gupta & Anr. v. Phoenix ARC Private Ltd. & Ors. also, which are pending before DRT-II, by filing Miscellaneous Application Nos. 927/2014, 31/2015, 32/2015 and 33/2015.
As per the applicant, similar and identical contentions are raised in these S.As. and the prayers made in these S.As. filed by these third parties are the same which have been considered and decided by DRT-II, Delhi by passing an order/judgment dated 2.9.2014. This order has already been challenged by way of appeal filed before this Tribunal and which is pending consideration. It is accordingly pleaded that these S.As. be transferred to DRT-II, Delhi since the said Tribunal has already decided and dealt with same issue.
The applicant has also pleaded that respondent Festival City Revival Association (respondent No.1 in Misc. Application No. 926/2014) had filed a writ petition before Hon'ble Division Bench of Punjab and Haryana High Court at Chandigarh challenging the action initiated by the applicant. The said writ petition was dismissed on 6.9.2014 which order was challenged by filing SLP before the Hon'ble Supreme Court. The Hon'ble Supreme Court, while taking notice of the alternative remedy of appeal available under Section 17 of the SARFAESI Act has observed that High Court, instead of deciding the case on merit, ought to have allowed the applicant to move before Debts Recovery Tribunal. The Court, therefore, allowed the petitioner (respondent No.1) to file application under Section 17 of the SARFAESI Act before the DRT. The Supreme Court has further observed that if such an application is filed in accordance with law within two weeks then the Debts Recovery Tribunal of competent jurisdiction will decide the same uninfluenced by the impugned judgment and order dated 6.9.2014 passed by the Punjab and Haryana High Court in CWP No. 18380 of 2014. Respondent No. 1 had according filed the S.A. before DRT-II, Chandigarh.
The prayer for transfer of this S.A. is made only on the ground that DRT-II, Delhi has already adjudicated same/similar issue in an S.A. filed by similarly placed third party and so the plea is that these cases are also transferred to the said DRT so as to avoid any chance of contradictory order being passed.
This ground to seek transfer of S.As. filed before a Tribunal having jurisdiction to decide the same may not appear appropriate. Simply because same or similar issue has been considered by another Tribunal would not mean that this would be good reason to transfer the S.A. to that Tribunal. It would have been a different matter if the issue still has been pending before more than one Tribunal and prayer was to consolidate all these cases for being decided together. Once the earlier S.A. has already been decided on the basis of facts pleaded, another S.A. filed, may be of similar or same nature, cannot be transferred to a Tribunal which is not having jurisdiction to entertain it under law.
I am conscious of fact that this Tribunal is empowered to transfer the S.A., but such transfer has to be on some consideration which is legally valid. Now the order passed by DRT-II. Delhi can even be cited before the Tribunal at Chandigarh. In any case, this Tribunal is obliged to take notice of the order passed by the Hon'ble Supreme Court which has given liberty to the respondent herein to file an application before the Debts Recovery Tribunal of "competent" jurisdiction, which is to decide the same uninfluenced by the order passed by the Hon'ble High Court. If the S.A. is required to be filed before a Tribunal of competent jurisdiction as per the direction of Hon'ble Supreme Court, then its transfer on the ground as pleaded in the present applications may, in a way, tend to violate the order or observation made by the Hon'ble Supreme Court. This is to be avoided at any cost. Any observation made by the Supreme Court has to be respected in letter and spirit and cannot even be impliedly glossed over.
Accordingly, I am not inclined to accept the request of the applicant and would dismiss these applications filed for transfer of the S.As. from DRT-II, Chandigarh to DRT-II, Delhi.
Considering the fact that two appeals have been filed and are pending before this Tribunal against the order passed by DRT-II, Delhi, which are stated to be similar to the case pending before DRT-Il, Chandigarh, it may be appropriate to pend the decision in these two appeals till decisions of these S.As. as otherwise the challenge made by the applicant in these S.As. pending before the DRT-II, Chandigarh may be rendered infractions. There may be a need to expedite hearing of these S.As. DRT-II. Chandigarh is, therefore, directed to decide the S.A., on priority, preferably within two months from the date of receipt of copy of this order. The Tribunal will also be at liberty to prepone the cases if these S.As have been adjourned to any longer date.
Applications dismissed.