Debts Recovery Tribunals and Appellate Tribunals
SHRI RAJESH KUMAR GUPTA vs RAJDHANI NAGAR SAHKARI BANK LIMITED on 30 April 2024
IN THE DEBTS RECOVERY TRIBUNAL LUCKNOW
Present: A.H. Khan, Presiding Officer
Dated of order 30.4.2024
M.A. No.123 of 2023
**Present:-**
<table border="1"><tr><td>Counsel for the Applicant</td><td>Mr. Shakti Ojha</td></tr><tr><td>Counsel for the Respondent-bank</td><td>Mr. Suneet Kumar Sharma</td></tr></table>
The Hon'ble DRAT vide its order dated 13.3.2024 passed in Appeal Dy. No.377/2024 had directed this tribunal to decide in accordance with law the M.A as well as interim application.
It is contended by the counsel for the applicant that the M.A. was filed on 04.8.2023 against the final order dated 16.02.2023 passed by this tribunal in S.A. No.417/2019, the S.A. was finally disposed-off under certain terms and conditions which are detailed in the order dated 16.02.2023 and in-lieu of which the applicant has to deposit 50% of the outstanding dues by 31.3.2023 and thereafter the applicant shall deposit the entire agreed upon with the bank by 30.6.2023, it is further contended that the bank has not provided the actual calculation of dues as directed by the tribunal, the applicant had deposited part payment in compliance of order dated 16.02.2023 passed by this tribunal and has filed this M.A. thereby seeking extension of time to deposit the remaining agreed amount with the bank as a detailed in the order dated 16.02.2023. Further in view of liberty granted by the Hon'ble DRAT, Allahabad, the applicant has also filed an interim relief application and thereby prayed to restrain the bank not to take any corrosives measures further by transferring, alienating or dispossessing the applicant from the subject property in r/o the auction conducted on 17.10.2023 and the order passed under Section 14 of the Act, 2002. The applicant are ready to deposit the entire dues of the bank, hence the M.A. be allowed and the interim relief prayed be granted in the interest of natural justice, failing which the valuable rights of the applicant in the subject property shall be jeopardized.
The counsel appearing for the respondent-bank had contended that the present M.A. has been filed beyond the prescribed period of limitation and by means of present M.A. the applicant is seeking extension of time to deposit the remaining amount detailed in the order dated 16.02.2023, the extension sought by means of this M.A. and the interim relief prayed in the interim relief application cannot be granted on the following grounds:
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1. (i) M.A. is not maintainable and the relief prayed in the M.A. is beyond the scope of this tribunal, the same shall ultimately result into review / recall of its own order dated 16.02.2023 by the tribunal.
- (ii) By means of the order dated 16.02.2023, the applicant has waived all his objection and grounds taken in the S.A.
- (iii) The property in question had already been auctioned after the applicant failed to deposit the specified amount within the time frame as directed by this tribunal.
- (iv) Residual/excess amount left in the account after adjusting the loan from the auction proceed received has already been refunded to the applicant through banker cheque dated 12.01.2024, as itself accepted by the applicant in para 18 of the application for Interim Relief.
- (v) Third party interest has been created in the property.
- (vi) The interim relief application is in r/o a new cause of action, which was not under challenge in the disposed S.A, thus, by granting any Interim relief at this stage, the same shall change the entire nature of the case.
The bank had also stated that this tribunal while passing the order dated 16.02.2023 has taken a liberal view on the submission made by the applicant and had given substantial time to the applicant to deposit the entire dues of the bank and disposed of the S.A., but, the applicant had failed to comply with the order dated 16.02.2023 passed by the tribunal, thus, as per liberty granted by this tribunal, the bank has sold the property in question, but, the applicant neither challenged the said sale nor deposited the amount as per the direction of this tribunal, hence, no interim relief may be granted to the applicant and the M.A. is liable to be rejected.
Heard counsel for both the parties and gone through the records.
From the perusal of record, it is seen that this tribunal has taken a lenient view while passing the order dated 16.02.2023 and had thereby given an opportunity to the applicant to repay the dues of the bank in easy installments, the said order was passed with the consent of the applicant, but, the applicant had failed to comply the said order and has not deposited the entire amount as per the directions given by this tribunal, thus, the tribunal is of the considered view that applicant had deliberately failed to comply the order of this tribunal and by the present M.A the applicant has made an abortive attempt to frustrate a confirm sale, therefore, the applicant is not entitled for any relief and thus the M.A. is not liable to be allowed.
The Hon'ble Supreme Court in the case of "*CELIR LLP Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors*" by taking reference to section 13(8) of the SARFAESI Act, 2002 has held that the right of the borrower to redeem the secured asset stands extinguished on the very date of publication of the notice for public auction".
The Hon'ble Allahabad High Court in the case of "*Rafeeq Ahmed vs. State of U.P. (supra)*" has held that the persons who are not interested in repayment of loan, must not be permitted to play with procedure of law.
As regard to the Interim Relief application and the interim relief prayed therein, this tribunal is of the considered opinion that allowing the said Interim Relief application at this stage shall result into multiplicity of litigation in a proceedings which have been conducted after the applicant had waived all his objections and grounds taken in the S.A and deliberately failed to comply with the order dated 16.02.2023 passed by this tribunal. In these circumstances, this tribunal is of the considered view that the arguments made by the applicant to allow the M.A. and grant interim relief have no force, hence, the same cannot be considered and thus rejected and the arguments made by the bank to dismiss the M.A. and the Interim Relief application are legally sustainable in the eyes of law, hence the same are fortified.
In view of the above submission and observation made and the law laid down by the Hon'ble Supreme Court and High Allahabad High Court, the interim relief application is hereby rejected and the present Misc. Application filed by the applicant is accordingly dismissed without cost.
As the Misc. Application is accordingly dismissed, hence, all the pending applications are also accordingly disposed of.
Let copy of this order be supplied to the parties as per Rules.
File be consigned to record.
(A.H. Khan) Presiding Officer