Punjab National Bank vs Kapil Taneja And Ors.

J.M. Malik, J

This order shall decide the appeal preferred by Punjab National Bank against the order dated 4.4.2011 rendered by the learned trial Court.

Previously, the learned trial Court, vide its order dated 23.2.2010 had issued a recovery certificate in the sum of Rs. 2,49,49,839/- along with costs and pendente lite and future interest w.e.f. 18.12.2009 till realization at the rate of 10% p.a. with six monthly rests, against defendants 1 to 9 jointly and severally. In the said judgment it was also observed that in the original application the appellant Bank had also prayed for attachment of Rs. 216 lac which was lying in the no lien account with the Bank by the directions given by the learned Additional District Judge (West), Jaipur City, Jaipur vide his order dated 22.10.2008. The learned DRT observed that in this regard any direction for the settlement of the said amount of Rs. 216 lac lying in the no lien account of the Bank could be made subject to the final decision of the learned Civil Judge (West) Jaipur City, Jaipur in the matter pending before him and till then the Tribunal showed its inability to pass any order for the settlement of the said amount.

Consequent upon the issuance of recovery certificate, the Recovery Officer started execution proceedings and proceeded to auction the mortgaged properties. Mr. Kapil Taneja who is a certificate-debtor, filed an application dated 10.7.2010 before the Recovery Officer praying not to put their immovable properties to auction to recover the dues of the Bank and adjust Rs. 216 lakh which were available with the Bank. His request did not find favour with the Recovery Officer and his application was dismissed. The Recovery Officer came to the conclusion that the matter will be decided by the Additional Civil Judge, Jaipur. Aggrieved by the said order, the appellant filed an appeal under Section 30 of the RDDBFI Act before the learned DRT. The DRT vide its order dated 4.4.2011, dismissed the appeal, against which the present second appeal before this Tribunal has been preferred.

I have heard the Counsel for the parties. The learned Counsel for Mr. Sandeep Sharma. respondent No. 3 vehemently argued that the Jaipur Bench of the Hon'ble High Court of Rajasthan, vide its order dated 4.5.2010, was pleased to stay the proceedings pending before the Civil Court. The relevant portion of the said order reads as follows:

Issue notice to the respondent Nos. 2 to 7. Rule is made returnable within four weeks.

Meanwhile, the operation of the order dated 29.4.2010 (Annex. 14) as well as the further proceeding in Civil Suit No. 1397/2008 pending before the Additional Civil Judge (Jr. Div.) West, Jaipur City, Jaipur is hereby, stayed.

The Counsel for the respondent No. 3 argued that the stay granted by the Hon'ble High Court is still operative and further proceedings are yet to be considered by the Hon'ble High Court. He contended that under these circumstances, this Court should not pass any order in respect of the said sum of Rs. 216 lac.

However, a bare look on the documents before me clearly go to show that the Hon'ble High Court vide its order dated 3.1.2011 has subsequently modified the above said order of stay, the operative portion runs as follows:

Heard the learned Counsel for the parties.

Undoubtedly, the plaintiff-respondent Nos. 2 and 3 have a right to move an application for withdrawal of the civil suit. Obviously, the order dated 04th May, 2010 is not permitting the teamed Court to even consider the said application. Therefore, it would certainly be in the interest of justice to modify the order dated 4th May, 2010 to the limited extent that the proceedings in Civil Suit No. 1397/2008 pending before the Additional Civil Judge (Jr. Div.) West, Jaipur City, Jaipur are permitted to be continued. The order dated 4th May, 2010 is modified to this limited extent.

However, considering the anxiety of the petitioner that the said application may be subterfuge, this Court, by way of abundant caution, direct the learned trial Court to consider the application filed by respondent Nos. 2 and 3 strictly in accordance with law. In case, the petitioner is aggrieved by any order that may be passed which might be injurious or adverse his interest, he shall be free to challenge the same before the appropriate Court.

With these observations, this application is, hereby, disposed off.

The attention of the Court was invited towards the latest order dated 27.5.2011 passed by the learned Civil Court. The order passed by the learned Civil Court is in Hindi, but English translation of the same has been placed on file today. The operative portion of the said order reads as under:

Consequently while disposing of the application under Order 23 Rules 1 and 2, C.P.C. filed on behalf of the plaintiffs, the application under Section 151 C.P.C. filed on behalf of the defendant No. 1 dated 7.5.2011 and the application under Section 151, C.P.C. filed on behalf of the defendant No. 1 permission to the plaintiffs to withdraw their suit on the cost of Rs. 2000/- and the compulsion of No-lien on the disputed amount of Rs. 216 lac which is in deposit in the No-lien account with the defendant No. 5 is removed.

No evidence has been adduced before me to prove that the said order passed by the learned trial Court has been challenged. It has to be borne in mind that the said order was recently passed. However, in view of the circumstances, I hereby allow the Bank to appropriate the sum of Rs. 216 lac, without prejudice to the rights of the parties. However, the said amount being appropriated will be subject to the order which might be passed by the higher/appellate Civil Court. Again, nothing will debar the Bank from recovering its dues in accordance with the order passed by the learned trial Court on 23.2.2010.

Appeal stands disposed of

Copies of this order be furnished to the parties as per law and another copy be sent to the learned DRT.