PUNJAB NATIONAL BANK vs MS KISAN RICE MILL on 29 August 2024

**ORDER**

This Misc. Application has been filed by the applicant bank for recalling the impugned order dated 07.03.2024, passed in S.A. No. 618/2022 and restored the S.A. on its original number and status.

2. The Written Objection of this Misc. Application has been filed by the respondents, denying all the allegations as alleged by the applicant bank.

3. Heard the ld. Counsel of the parties.

4. Ld counsel for the M. Applicant bank submitted that the above mentioned SA date was fixed on 07.04.2024 at pleading stage and both the counsels were present, Sh. Varchaswa Dwivedi BH of Sh. Ashok Pandey Ld counsel for the S. Applicants(SA No. 618/2022) and Sh. S.K. Srivastava Ld counsel along with Sh. Abhishek Kumar LO of the bank were present before Hon'ble Tribunal, at this stage as per query of Hon'ble Tribunal asked about the 2**DRT, Allahabad****MA 83 of 2024[J]**

further submitted that Nodal Officer has contacted the Law Officer Gorakhpur with regard to status of case.

It is further submitted that previous circle office at Basti was merged in different circles, and the district Maharajganj is merged in Gorakhpur Circle. The instant securitization proceeding was initiated by the then circle satra, circle office Basti and on the date fixed i.e 7.03.2024 the said account is transferred to Circle Sastra, Girakhpur Circle, Gorakhpur.

It is further submitted that, on quarry of Hon'ble Tribunal, Nodal officer of Bank made the communication with Circle Sastra on phone and Circle Sastra Gorakhpur informed that previous proceeding had been withdrawn and fresh proceeding has also been initiated. But due some confusion and due to no- clear voice it was understand that the proceeding challenged in this SA No.618/2022 is withdrawn while fact was that the previous action challenged in SA No.227/2019 was withdrawn by the respondent bank. It is further submitted that respondent bank has also not issued any notice to the S. Applicants regarding withdrawing the entire SARFAESI actions.

It is further submitted that due to confusion and without any intention inadvertently the statement was made before Hon'ble Tribunal and Hon'ble Tribunal on the statement of respondent bank, held the said SA No.618/2022 infructuous and dismissed the same. But factual position is that the respondent bank did not withdraw the action challenged in instant SA No.618/2022. So recall of order dated 7.03.2024 is necessary in the interest of justice otherwise there will be irreparable loss to respondent bank.

It is further submitted that the respondent bank's counsel did not commit any wrong knowingly and inadvertently statement was made by the bank's counsel therefore, request is made that order dated 07.03.2024 may be recalled and the SA No.618/2022 may be restored on its original number and status.

*During the course of arguments* Ld counsel for the M. Applicant Bank submitted that on 07.03.2024 case was listed at pleadings stage and both the counsels were appeared, Sh. Varchaswa Dwivedi BH of Sh. Ashok Pandey Ld counsel for the S. Applicants and Sh. S.K. Srivastava Ld counsel along with Sh. Abhishek Kumar Law Officer of the Bank. It is further submitted that Nodal Officer has contacted the Law Officer Gorakhpur with regard to the status of case but due to some miscommunication and inadvertent mistake, the respondent bank has submitted before this Tribunal that respondent bank has withdrawn the entire SARFAESI Act involved in this matter. The respondent has not done anything knowingly. It is further submitted that respondent bank has also not issued any notice to the S. Applicants regarding withdrawing the entire SARFAESI Actions.

5. On contrary, ld. counsel for the Opposite Party No. 5 has filed Objection for self and for Opposite Party No.- 4 because in present matter Notice and summon has only been served on Opposite Party No.- 4 Shadab Ahmad Khan and Opposite Party No. 5 Smt. Badrunnisha .

It is further submitted that M. applicant bank has filed application on his own although he has no authorization to file application while he was not party in the case nor he has filed anything to this effect.

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It is further submitted that this M.A. has been filed for recalling order Dt. 07.03.2024, which is passed in presence of counsels for both parties. As such recall of order is Not-Maintainable because order was not ex-parte. The order was passed on 07.03.2024 Free copy is Dt. 11.03.2024 Misc. Application was sworn on 19.04.2024 and filed on 21.04.2024. Meaning thereby Misc. Application is barred by limitation.

That Opposite Party(s) have not played any fraud while passing of the order and the submissions made in Misc. Application are highly misconceived, unreliable and apparently false on the face of it.

It is further submitted that statement of withdrawal of process under SARFAESI Act has not been made in the court for first time. In fact similar statement was made on 04.08.2023. Thus statement made in court on 07.03.2024 is not error, lapse or misconceived. Further, aforesaid order is passed in presence of both the parties and it has attained finality, therefore, order dated 07.03.2024, passed in S.A. No. 618/2022 cannot be recalled. Further submitted that as per the law the M. Applicants should approach higher court to challenge this Tribunal's judgment Dt.: 07.03.2024. This Tribunal's judgment under challenge was passed in presence of Law Officer of the applicant bank but there is nothing on affidavit from his side to support the contention of the Applicants.

It is further submitted that by virtue of judgment Dt 07.03.2024 , SARFAESI Application has attained finality, as such Misc. Application to recall the judgment is not maintainable in eye of law, therefore, the Misc. Application No. 83/2024 may be dismissed.

During the course of arguments Ld counsel for the respondent no. 4 & 5 further submitted that Ld counsel for the respondent no. 4 & 5 submitted that on 04.08.2023, Ld counsel for the respondent has already submitted before this Tribunal that entire SARFAESI action have been withdrawn by the respondent bank and on this effect, the respondent bank was directed to seek instruction from the respondent bank, on 07.03.2024 after taking instruction from the respondent bank, respondent bank has withdrawn the entire SARFAESI Actions and upon this fact, the SA was dismissed being infructuous by this Hon'ble Tribunal therefore, the present MA may not be allowed as entire SARFAESI actions have been withdrawn by the respondent bank after thoughtful consideration.

**In rebuttal Ld counsel for the M. Applicant bank** submitted that earlier entire SARFAESI actions have been withdrawn by the respondent bank and on that confusion, respondent bank has stated before this Tribunal on 08.04.2023 that respondent bank has withdrawn the entire SARFAESI actions. Further submitted that by recalling the order dated 07.03.2024, there is no irreparable loss to the respondent no. 4 & 5.

6. Considered the rival contentions of the parties and perused the case records.

On perusal of record available in the present case, it appears that on 04.08.2023, the Ld counsel for the respondent bank submitted before this Tribunal that "entire SARFAESI actions have been withdrawn by the respondent bank" upon which, this Tribunal has directed to Ld counsel for respondent bank to seek instruction from the respondent bank and after taking instruction from the respondent bank, Ld counsel for the respondent bank on 07.03.2024

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submitted before this Tribunal that the respondent bank has withdrawn the entire SARFAESI actions involved in this matter and accordingly, the S.A. No. 618/2022 was dismissed as infructuous by this Tribunal.

Further, since the process of withdrawal of SARFAESI actions have not been initiated in the court for first time on 07.03.2024 but the similar statement was also given by the Ld counsel for the bank on 04.08.2023, therefore, the statement made before the court on 07.03.2024 cannot be treated as miscommunication or confusion. Further, the aforesaid order dated 07.03.2024 was passed in the presence of both the parties and once the SARFAESI actions have been withdrawn by the respondent bank and this Tribunal has dismissed the S.A. as infructuous, therefore, the order dated 07.03.2024, passed in S.A. No. 618/2022 cannot be recalled by this Tribunal as no plausible ground or cogent reason has been given by the M. Applicant Bank.

In view of the above facts and circumstances of the case, the present M.A. filed by the M. applicant bank, for recalling the order 07.03.2024 passed in S.A. No. 618/2022 is liable to be dismissed. Accordingly, The Misc. Application filed by the M. applicant bank is hereby dismissed.

A copy of this order be given to the parties.

Order signed, sealed, dated and pronounced in the open court on this 29^th Day of August, 2024.

Dictated & Corrected by me.

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

[R. M. Kushawaha] Presiding Officer Debts Recovery Tribunal, Allahabad

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