M/S HAMCO INDUSTRIES PRIVATE LIMITED vs THE KANGRA CENTRAL COOPERATIVE BANK LIMITED on 21 December 2021

1. Today the case is listed for orders on this MA.

2. This Miscellaneous Application has been filed by the MA applicant/respondent No.6 in SA No.39 of 2020 titled as M/s Hamco Industries Private Limited Vs. The Kangra Central Cooperative Bank Limited. Though the registry has registered this MA but after scrutiny has raised the objection that the MA is not maintainable.

3. I have heard Ld. Counsel for the MA applicant/respondent No.6 in detail and have perused the records.

4. Ld. Counsel for the MA applicant/respondent No.6 submits that he is aggrieved by the order dated 18.08.2021 wherein the Hon’ble Presiding Officer while disposing off the said SA has passed certain remarks against respondent No.6 and being the officer of respondent bank at the relevant time, his only intention, by way of present MA is to expunge the remarks given by the Hon’ble Presiding Officer against him and he is not aggrieved any other portion of the order dated 18.08.2021.

5. In support of his contentions, he draw my attention on the following observations made by the Hon’ble Presiding Officer in the order dated 18.08.2021, which are reproduced as under:- “The reply given by respondent to detailed grounds of Para 4 to 12 of S.A. is sufficient to prove and establish that the bank is not in position to clarify or explain the reason that why auction was completed only for one bid whereas there was an offer of both the lots by present applicant even offering 10% excess of highest amount. Ld. Counsel for the respondent bank also simply took plea that the applicant failed to deposit bid amount, so auction was not confirmed in their favour and I find myself in agreement with the arguments raised by Ld. Counsel for the applicant that respondent bank, themselves

failed to adhere the conditions of sale of both lost ‘A’ & ‘B’ to a single buyer and so, in my considered view possibility of a connivance between the Authorized officer of the respondent bank Mr. Ashwani Parana respondent no. 6 and auction purchaser, respondent no. 2 cannot be ruled out. Accordingly, I am of the considered view that the respondent bank knowing fully avoided the offer of applicant to purchase both the lots for an higher amount by 10% of highest bid, even after getting offer within 24 hours from the date of sale/ auction and now the Plant & Machinery is put to auction for an amount of Rs. 12.00 Crore through auction notice dated 24.05.2021, whereas they were having offer of applicant for Rs. 17.10 Crores against reserve price of Rs. 12.00 Crore.Meaning thereby now the respondent bank fixed the reserve price of Rs. 12.00 Crore on 21.06.2021, whereas applicant was offering an amount of R.s 17.10 Crore and so it is not clear that under what circumstances, respondent bank is willing to suffer loss of Rs. 5.10 Crore. Most important fact, is that the respondent bank did not bother to ask respondent no. 2, if he was interested for both lots, but the bank ignored the offer of the applicant for purchase of both the lots”.

6. Ld. Counsel for the MA applicant/respondent No.6 further submits that it is not a case of appeal or review and hence, the present MA is maintainable.

7. I have considered the submissions advanced by the Ld. Counsel for the MA applicant and perused the relevant provisions. I have also gone through the impugned order dated 18.08.2021 as well as the relevant provisions of DRT Act and SARFAESI Act. The operative portion of judgment dated 18.08.2021 passed by the Hon’ble Presiding Officer is reproduced as under:- “A copy of this order be forwarded to GM of the respondent bank to look into the matter, that why their Authorized Officer are interested in selling the same Plant & Machinery for an amount of Rs. 12.00 Crore only through auction notice dated 24.05.2021 whereas just a year ago i.e. on 04.07.2020, they were having a buyer i.e. the S.A. applicant for Rs. 17.10 Crore. This may be a case, causing wrongly loss by employees of the respondent bank and an in-

depth enquiry is required, if the respondent bank think it proper”.

8. Rule 18 of the SARFAESI Act is reproduced as follows:- “18. Appeal to Appellate Tribunal.- (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under Section 17 may prefer an appeal along with such fee, as may be prescribed] to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal: [Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower:]”

9. The applicant/respondent No.6 herein is a party in the main SA. The respondent No.6 has also filed reply. The order dated 18.08.2021, passed by the Hon’ble Presiding Officer is an order on merits. There is no other provision in the SARFAESI Act for review, modification, correction or to expunge the remarks, passed in a final order by way of a Misc. Application after the disposal of main SA.

10. I have also tried to take the help of Rule 5-A as prescribed under the provisions of the Debts Recovery Tribunal (Procedure) Rules, 1993, which is reproduced as follows:- [5-A. Review.- (1)Any party considering itself aggrieved by an order made by the Tribunal on account of some mistake of error apparent on the face of the record desires to obtain a review of the order made against him, may apply for a review of the order to the Tribunal which had made the order.

(2) No application for review shall be made after the expiry of a period of [thirty days] from the date of the order and no such application shall be entertained unless it is accompanied by an affidavit verifying the application.

(3) Where it appears to the Tribunal that there is no sufficient ground for a review, it shall reject the application [but where the Tribunal is of opinion that the application] for review shall be granted, it shall grant the same. Provided that no such application shall be granted without previous notice to the opposite party

to enable him to appear and to be heard in support of the order, a review of which is applied for.]

11. The case of the present MA applicant also does not fall within the four corners of the provisions of Review as mandated aforesaid.

12. After going through the relevant provisions in detail, in my considered view since the order dated 18.08.2021, passed by Hon’ble Presiding Officer is an order on merits, the only remedy lies with the present applicant is to file an appeal before the competent forum and the present MA is not maintainable before this Tribunal. Rule 5(4) of the Debts Recovery Tribunal (Procedure) Rules, 1993 empowers the Registrar to decline to register an application if the same is not in order or if the applicant fails to rectify the defects within the reasonable time. Accordingly, the MA is hereby rejected being not maintainable.

13. Let a copy of this order be given to the Ld. Counsel for the MA applicant and be uploaded on the official website of the Tribunal immediately, thereafter file be consigned to record room, after due compliance.

(Niranjan Sharma) Registrar (I/c) DRT-I, Chandigarh