Sunil Kumar Arora & Anr. vs Bank of Baroda & Ors.

JUSTICE R. D. KHARE, CHAIRPERSON

The present appeal has been preferred under section 20 of the Recovery of Debts & Bankruptcy Act, 1993 (hereinafter referred to as the "RDB Act") against the judgment dated 11.11.2020, whereby the Original Application No. 163/2020 filed by the respondent-Bank has been allowed by the Tribunal below.

Brief facts of the matter are that the appellants were granted financial assistance in the firm of overdraft limit of Rs.45.00 lacs for personal use. In order to secure the same, the appellant no. 2 created equitable mortgage over her property by depositing original title deed with the respondent-Bank. In addition to it the appellants executed and signed various loan and security documents on 23.02.2018 in favour of the respondent-Bank. Since the appellant-borrowers did not adhere to the terms of loan agreement, therefore, the loan account was classified as NPA on 30.09.2019. Hence the respondent-Bank filed an O.A. No. 163/2020 for recovery of Rs. 45,43,231.27 along with pendentelite, future interest, costs and for issuance of recovery certificate for the said amount. The Tribunal below vide order impugned has allowed the said O.A. in toto. Being aggrieved by the said order, the present appeal has been filed by the appellants-borrowers.

Learned counsel for the appellants has drawn attention of this court to the previous order passed by this Appellate Tribunal, wherein the learned counsel for the respondent-Bank had contended that the Bank is not proceeding under the SARFAESI Act, as the decree was obtained by the Bank in the proceedings initiated under the RDBI Act by filing the original application u/s 19 of the said Act. It was further contended that the respondent-Bank had contended that no proceedings under the SARFAESI Act was initiated, but it is not correct, as the Bank has proceeded under the SARFAESI Act.

Learned counsel for the respondent-Bank submitted that the Bank had never said so that the Bank has not proceeded under the SARFAESI Act and on the previous occasion, the intent was that now the Bank is not proceeding under the SARFAESI Act.

Learned counsel for the appellant has drawn attention to page No. 193 of the memo of appeal, which is notice dated 09.10.2019 under section 13(2) of the SARFAESI Act for a sum of Rs. 46,55,868/- sent to the borrower. Learned counsel has further drawn attention of this court to page No. 197, which is possession notice dated 19.12.2019 under section 13(4) of the said Act.

Learned counsel has placed reliance on the statement of account filed at page No. 198 to 201 of the paper book and has contended that bare perusal of the said statement of account shows that the notice declaring the account as NPA would have been given, but no notice under section 13(2) has been issued as per guidelines of the Reserve Bank of India.

Learned counsel for the appellant has also drawn attention of this court to page No. 244, which is order dated 26.12.2022 of the Recovery Officer, wherein it is recorded that that the EMD was not deposited on 02.11.2022. Learned counsel has next drawn attention of this Court to Para No. 1 of the order dated 04.01.2023 passed by the Recovery Officer at page No. 246, wherein it has been noticed that the EMD, which was deposited by Shri Rajesh Kumar Gupta and Sanjay Kumar Gupta through RTGS, was reversed on 03.11.2022, therefore, it cannot be said that the amount of EMD was deposited by the auction purchasers. Learned counsel has further drawn attention of this court to page No. 255, which is affidavit of the Chief Manager of the respondent-Bank and paragraph No. 4 of the said affidavit also authenticates the said averment as argued by the learned counsel for the respondents. In this regard, reference has been made to section 25 to 29 of the RDB Act and it has been argued that the amount of EMD has to be deposited within the stipulated time and date, which is not done in the present case, as admitted by the Chief Manager of the respondent-Bank in its affidavit at page No. 255 of the memo of appeal. It was further contended that in spite of the said fact that the amount was not deposited in time, the sale has been done and confirmed by the Bank, which cannot be sustained. It was further contended that unless the amount is deposited within the date and time as prescribed in the sale notice, no auction can take place, therefore, the present auction, which was done without deposit of EMD, is bad in law. Hence, it was prayed that the order impugned may be set-aside and the appeal may be allowed.

Learned counsel for the respondent-Bank has referred to page No. 255 of the paper book, which is affidavit of the Chief Manager of the Bank and has contended that the name of the party is to be noted, which is against M/s Western U.P. Coal and Fuel System, which party is not party in the present appeal. Learned counsel has further drawn attention of this court to page No. 252 of the paper book, which is e-auction sale notice dated 05.09.2022 issued by the Recovery Officer in the proceeding of DRC No. 281/2020-Bank of Baroda Vs. M/s Western U.P. Fuel Systems and Ors. As such the proceedings of the said DRC cannot be challenged in the present case, for which the Bank had filed separate O.A. No. 162/2020 and the present appeal has been filed against the judgment passed by the Tribunal below in the O.A. No. 163/2020 filed by the Bank.

Learned counsel for the respondent-Bank has next drawn attention of this court to page No. 47 of the paper book, which is relief sought by the appellant, in which the prayer has been made for setting aside the judgment dated 11.11.2020 passed in O.A. No. 163/2020, against which no proceeding has been drawn. It was thus contended that the present appeal is not maintainable against the prayer made for setting aside the proceedings initiated in O.A. No. 162/2020, which is separate and distinct. It was, therefore, prayed that the present appeal may be dismissed with heavy costs.

In the last, learned counsel for the appellant submitted that against the judgment passed by the Tribunal below in O.A. No. 162/2020, another appeal has been filed by the appellant before this Tribunal, which is lying defective for the last two years, therefore, both the appeals may be decided by a common judgment.

Having heard the learned counsels for the parties and considering the material available on record, it is undisputed that the present appeal has been filed against the judgment passed by the Tribunal below in O.A. No. 163/2020 and in the said O.A., no execution proceedings have yet taken place. All the contentions made by the learned counsels for the appellants are with regard to the DRC No. 281/2020, which is arisen out from the judgment passed by the Tribunal below in O.A. No. 162/2020. Leaned counsel for the appellant has not pointed out any irregularity or illegality with regard to the order impugned in the present appeal, therefore, the appeal is liable to be dismissed.

In view of the discussions as held above, the order impugned does not call for any interference by this Tribunal. The other reliefs as sought by the appellant do not pertain to the present case, therefore, the same cannot be considered. Consequently, the present appeal is dismissed with no order as to costs.

A copy of this judgment be forwarded to the parties as well as the DRT concerned and be also uploaded on the e-DRT portal.