Tride International (P) Ltd. And Ors. vs Bank Of Baroda And Ors.

S.N.H. Zaidi, J

Mr. Bhandari submits that the appellant has received the certified copy of the order impugned and the same shall be filed during the course of the day. In view of this statement, the application (I.A. No. 418/2013) filed by the appellants for entertainment of the appeal without the certified copy, is disposed of accordingly. Also heard on application (I.A. No. 417(2013) filed for entertainment of the appeal without requiring the appellant to deposit the amount as per the second proviso to section 18(1) of the SARFAESI Act. Mr. Bhandari submits that the appellants are not seeking any restraint order qua the recovery of the amount of debt due and they are aggrieved only with the underlined portion of the order impugned which has been reproduced in para No. 2 of the instant application, whereby the Tribunal below has appointed a Receiver for taking the possession of the secured asset. He submits that the Tribunal below, while permitting the appellant to deposit Rs. 1 crore within three weeks, vide order dated 2.5.2013, had observed that in case the price offered by the appellant is not found suitable, the respondent would be at liberty to proceed further in respect of the property in question by taking the physical possession through the very same Receiver after three weeks. He points out that the said Receiver was appointed by the ACMM, vide order dated 19.1.2013 under section 14 of the SARFAESI Act. He also contends that the appellants have no grievance if the said Receiver proceeds in respect of the secured asset in accordance with law as well as qua that observation made in the order impugned whereby the Tribunal below, after vacating the restraint order, has directed the respondent bank to proceed further in accordance with law.

Considering the above submissions and the circumstances of the case, I am inclined to accept the contention of Mr. Bhandari that looking to the nature of the specific portion of the order dated 13.5.2013 which has been impugned in this appeal, the appellant is not required to deposit any amount for the entertainment of the present appeal. Application stands disposed of accordingly. Let appeal be entertained and registered.

Also heard on admission. Mr. Bhandari submits that the appellants are the borrower/mortgagors and have challenged the measures taken by the bank under the SARFAESI Act qua the secured asset by filing the S.A. before the Tribunal below, which is still pending. He further submits that the Tribunal below, vide order dated 2.2.2013, had allowed an opportunity to the appellants to get the best sale price of the secured asset and on the submission of the appellants that they would deposit Rs. 1 crore within three weeks with the respondent bank, they were asked to make the said deposit within that period and the bank was restrained from taking the physical possession of the property vide order dated 2.5.2013, with the condition that in case the price offered by the applicant is not found suitable, the respondent bank would be at liberty to proceed in respect of the secured asset by taking physical possession thereof by the very same Receiver, appointed by the ACMM, after the said period of three weeks. Mr. Bhandari also submits that in the letter sent to the bank on 5.5.2013, the appellants had informed that they had a buyer, who was ready to purchase a portion of the secured asset for Rs. 1.2 crores but since the bank did not reply to that letter, therefore, Rs. 1 crore could not be deposited in three weeks due to which the Tribunal below vacated the restraint order and directed the bank to proceed in accordance with law. He submits that the appellants have no grievance to this order.

According to Mr. Bhandari, the appellants are aggrieved only with that portion of the order impugned whereby the Tribunal below has appointed a new Receiver for taking the possession of the property in question even after already observing in its earlier order dated 2.5.2012 that the bank would take the physical possession through the same Receiver, i.e., the one who was appointed by the ACMM. According to him, after the appointment of the Receiver by the ACMM for taking the actual physical possession of the property, further appointment of another Receiver for the same purpose was not warranted. He further contends that, the Tribunal below is not vested with the power, under section 17 of the SARFAESI Act, to appoint a Receiver for the said purpose which is vested only in the CMM or the DM under section 14 of the Act.

Having considered the submissions of the appellant's counsel and going through the order impugned, I find myself in agreement with Mr. Bhandari that in view of the circumstance that a Court Receiver had already been appointed by the ACMM vide order dated 19.1.2013 for taking the actual physical possession to the secured asset and the Tribunal below had already observed in its order dated 2.5.2013 that the very same Receiver would take the possession of the secured asset in accordance with law, the appointment of the other Receiver for the same purpose was not warranted. In view of this, the instant appeal can be decided without issuing notice to the respondent at this stage with the modification of the order impugned to the extent that instead of the Receiver appointed by the Tribunal by the order impugned, the Receiver appointed by the ACMM shall take the possession of the secured asset in accordance with law and the bank may, without prejudice to the right of the parties, recover its dues in accordance with law. The appeal is disposed of accordingly with the modification in the order impugned as aforesaid.

Copy of the order be furnished to the appellant and be sent to the DRT concerned.