CENTRAL BANK OF INDIA vs SRI AMAR KUMAR AGRAWAL on 27 January 2026

ORDER

DRT,PATN A Appeal No.3 of 2017[J] This Appeal alongwith Limitation Petition has been filed by the appellant Bank, against the order dated 29.12.2016, passed in R.P.Case No.80 of 2000, by learned Recovery Officer of this Tribunal, requesting for set aside order 29.12.2016. The Reply of the appeal has been filed by the respondent. The brief facts of the case are that a Recovery Certificate dated 26.06.2000 for execution was passed by this Tribunal in Ex. 23 of 1999 against M/s Industrial Corporation Pvt. Ltd. & Ors. In order to recover the certificate amount, the certificate was numbered as RP 80 of 2000 and recovery proceedings were initiated. In continuation of recovery proceeding the movable was auctioned on 23.11.2001 to successful bidder deceased Amar Kumar Agarwal with the bid amount of Rs.91,51,000/- for movables of Lot No.1 to Lot No. 5 as mentioned in auction Sale Notice. The said auction sale was challenged by Certificate Debtors by filing Appeal 26/2002 before this Tribunal which was dismissed vide order dated 13.01.2004 with the direction to confirm the sale. Thereafter, the Certificate Debtors Company filed CWJC No. 2370/2003 before Hon’ble High Court of Patna which was allowed vide order dated 22.06.2004 and Recovery Officer was directed to refund the auction amount. Aggrieved from the order of Hon’ble High Court, the Bank as well as the auction purchaser filed LPA No. 773/2004 and 783/2004 respectively. While hearing LPA, the Division Bench vide order dated 16.08.2004 stayed the order of single bench. Further, the Bank requested Ld. R.O. to direct the auction purchaser to deposit the cost & rent incurred towards security of the premises wherein moveable was lying; however, the request of the Bank was rejected by the Ld. R.O. vide order dated 23.09.2008 and permitted to the auction purchaser to lift the materials. Against the. order dated 23.09.2008, the Bank filed an Appeal 04/2008 before this e/’lXo ' /\@ ,\\ nFl

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5. DRT,PATN A Appeal No.3 of 2017[J] Tribunal which was disposed of on 13.04.2009 and the auction purchaser was directed to lift the materials on “Superdari" basis.

6. In the meantime, on report of Advocate Commissioner regarding illegal lifting and theft of materials, Id. The Recovery Officer conducted an enquiry on 05.09.2014. Further, the auction purchaser filed Civil Review No. 180/2015 against the order dated 24.06.2015 passed in abovementioned LPAs. The said Civil Review was disposed of on 20.01.2016. Ld. The Recovery Officer passed a detailed order on 29.12.2016 considering the checkered history of litigation in the matter against the auction sale of movable items. Aggrieved from the order dated 29.12.2016, the present Appeal has been filed by the Bank.

7. Since, appeal is pending from 03.02.2017 and despite given several chances, the respondent no. 1(A) has neither appeared nor filed reply in the matter, therefore, heard the arguments of the Id. counsel of appellant Bank as well as Id. Counsel for respondent no. 1(b).

8. It is submitted by Id. Counsel of appellant Bank that the order passed by Ld. The recovery officer is bad. In law, add also on facts. The auction purchaser Sri Amar Kumar Agarwal did not deposit the whole auction bid an amount of rupees. 91.51 lakhs, within stipulated time of 15 days as per income tax act, hence whole process of auction of removal properties are illegal. And whatever amount, deposited by the auction purchaser, Sri Amar Kumar Agrawal is fit to be kept by the bank and the auction purchaser. Sri Amar Kumar Agarwal is liable to return all movable property taken away by him.

a. Despite non-compliance of order dated 30.09.2014 by the respondent to produce the movable kept with him under 'superdari’, the Recovery Officer proceeded further and passed impugned order dated 29.12.2016.

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b. The impugned order was passed in absence of conducting counsel of the Bank however, the law officer, Branch Manager and Assistant General Manager were present before the Ld. Recovery Officer but the Bank was not given an opportunity to present his case nor was the copy of order given on the same day.

c. Ld. The Recovery Officer did not take into account the items stolen. Buy the auction purchaser, though. The learned recovery officer observed. himself in order dated 05.09.2014 observed that “Any large scale theft may not be possible, in any case, most of the movables were basically extremely heavy iron stores which could not be removed without the help of proper carriage and instruments like gas cutters, cranes etc. Small-time thieves could at best have removed some Kilograms or quintals of iron, which might have been manually removed, as the gate was locked at all times. The rest have been removed by the auction purchaser or his agent himself, or most have been lying in the premises". Further on 08.09.2014 it is observed that “Large scale gas cutting of the immovable iron pillars and iron garters have taken place. Iron beams from the brick structures have been removed. All the cuttings appeared to be old. The cuttings indicate that a planned removal of immovable items appears to be much more than the cost of the auctioned movable materials. Such cuttings surely could not be attributed to small-time burglary or theft. A well planned approach must have been there”. These observations indicate that none other than the auction purchaser could manage such planned removal of movable items as only he was allowed to enter the premises with skilled labourers and Gas cutters. Mr r- TrI \\\ V1k

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d. Ld. Recovery Officer vide order dated 21.07.2009 directed to the Bank to depute the security guards with immediate effect till further order and any expenditure has arrived on such services will be shared 50% each by the CH Bank and the auction purchaser or its representative.

e. The auction purchaser had lifted 34 trucks of movables between 05.06.2009 to 24.07.2009 on Superdari basis which includes not only entire items of Lot No. 2 to 4 but also other items which were not at all subject to auction, was disallowed by the Recovery Officer with the observation that these movables were part of Lot No. 1 while the Lot No. 1 was already lifted by the auction purchaser between 06.07.2002 to 23.09.2002 which is evident from the order dated 05.04.2002, 08.08.2002, 26.08.2002 and 25.09.2002 passed by Recovery Officer.

f. The Bank had requested to the Recovery Officer that the auction purchaser may be directed to show the movables kept by them in superdari in the presence of Advocate Commissioner and Bank Official but the request of the Bank was not considered by the Recovery Officer. The auction purchaser delayed in lifting the items which is evident from the report of Receivers appointed in the matter. Ld. Recovery Officer in tentative finding dated 05.09.2014 also held that “the auction purchaser/POA holder has failed in exercise due diligence in lifting the movables. The undue delay on their part has resulted in theft or siphoning off, as alleged, if at all, something of that kind happened”.

g. That vide impugned order, it has been allowed that Shri Ravi Poddar is no more an agent of auction purchaser in view of the petition dated 01.09.2009 of the Bank. As such the claim of Power of Attorney (POA) of the jyction

DRT,PATNA Appeal No.3 of 2017[J] purchaser thereof is not maintainable as such the impugned order deciding the claim of POA is non-est in the eye of law.

9. On the other hand it has been submitted on behalf of the respondent that-

a. Due to the order of stay on 20.12.2001 passed in MA 25 of 2001 filed by borrower against certificate, the auction purchaser could not lift the articles.

b. Further, this Tribunal vide order dated 24.10.2002 passed in Appeal 26 of 2002 filed by Certificate Debtor, restrained the auction purchaser from lifting the materials. The said appeal was dismissed on 13.01.2004 holding that there is no infirmity in confirming the sale and the payment in installment subject to lifting of moveable property in separate lots on part payment cannot be termed as material irregularity and Rule 42 and 43 of the 2nd Schedule of the Income Tax provides that payment can be made in installment as far as moveable property is concern.

c. The Certificate Debtor filed CWJC No. 2370 of 2003 before Hon’ble High Court assailing the certificate issued by this Tribunal. The Hon’ble Court vide order dated 29.01.2004 directed to maintain status quo and thus lifting of materials was stopped. The said writ petition allowed vide order dated 22.06.2004 holding that the Presiding Officer, Debts Recovery Tribunal had no authority to issue certificate as the Execution Case was dismissed for default before Civil Court and Recovery Officer was directed to refund the amount to auction purchaser.

d. The Bank as well as auction purchaser filed LPA No. 773 of 2004 and LPA No. 783 of 2004 respectively assailing the order dated 22.06.2004 passed in CWJC No. 2370 of 2003

DRT,PATN A Appeal No.3 of 2017[J] The Division Bench vide dated 16.04.2004 passed an order of stay but the letter of confirmation was not issued by the Recovery officer as the said order was not set aside.

e. In the meantime, the Advocate Commissioner appointed by the Recovery Officer informed on 08.02.2006 regarding the theft of movable items. Despite request of the appellant Bank vide petition dated 23.09.2008, the Recovery Officer held that the auction purchaser is not liable to pay the security expenses and rent and thereafter issued letter of confirmation in favour of auction purchaser and the Branch Manager of the Bank was directed submit compliance report regarding handing over of moveable items.

f. On 15.10.2018 the Branch Manager appeared before the Recovery Officer and refused to permit the lifting of materials unless security expenses were paid by the auction purchaser. In view of this the Recovery Officer vide order dated 15.10.2018 directed to the Bank to refund the sale amount of Rs.91.51 lacs with 18% interest per annum with monthly rest to the auction purchaser. This order has not been challenged by the Bank.

g. The Bank assailed the order dated 29.09.2008 by filing Appeal 4 of 2008 before this Tribunal to the extent that the auction purchaser was permitted to lift the material without payment of security expenses and rent. The Appeal 04 of 2008 decided by the then Presiding Officer, DRT, Patna vide order dated 13.04.2009 and held that the auction purchaser is not liable to pay the security expenses and rent as the amount spent by the Bank is always liable to be recovered from the proceed of the auction sale and there was no condition imposed in the e-auction sale notice. - /’/. p \\ r/”

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h. The Certificate Debtor again filed CWJC No. 8309 of 2009 before Hon’ble High Court challenging the order dated 15.05.2009 passed by the Recovery Officer. The writ Court granted the stay and referred the matter to the Division Bench. The Division Bench vide order dated 16.09.2009 remitted the matter to the Recovery Officer to pass a fresh order on merits. Due to stay order passed at different stages by different forums and stubborn attitude of the appellant Bank in refusing to permit lifting of the moveable articles, the auction purchaser could not lift the items for 9 long years. In compliance with the order passed in Appeal, the auction purchaser fled Superdarinama on 17.04.2009 and sought permission to lift the moveable items. Accordingly, Vikash Kumar was appointed as a Commissioner on 24.04.2009 to submit a report latest by 15.05.2009 regarding the presence of the existing material at the site. The commissioner on 15.05.2009 reported that there has been a rampant theft of materials and 12 cases of theft have been registered in Panchrukhi Police station and 2 trolleys of theft materials have been seized by the police and kept in police station and sought additional time to allow lifting of materials. The appellant Bank was careless and inattentive in handling the items which were stolen when it was in their custody. Therefore, the Recovery Officer rightly held that the amount of items stolen has to be refunded and paid back to the auction purchaser with interest . Despite the direction of the Recovery Officer, the Branch Manager stated before the Recovery Officer that the i. J. k auction purchaser will not be allowed to lift the !able

DRT,PATN A Appeal No.3 of 2017[J] materials unless he pays the expenditure incurred towards deployment of security guard. Thus the Bank was directly instrumental in obstructing lifting of the materials and at the same time, contrived in theft of moveable items. Therefore, the auction purchaser is entitled for refund and interest against the value of items which could not be lifted. In compliance of order dated 20.01.2016 passed by Hon’ble Division Bench in Civil Review No. 180 of 2016, the Recovery Officer continued its enquiry which was being conducted, by visiting the site, taking evidence of witnesses and examining the Advocate Commissioner and the Branch Manager and thereafter, passed an order dated 29.12.2016 holding that it was due to the refusal of the Bank to permit lifting and theft being committed of moveable items in control of Branch Manager entrusted with the keys who had appointed the security guards and none of the FIR reported the auction purchased as accused which shows that the Bank failed to provide adequate safety and security of the items.

m. The Recovery Officer vide order dated 29.12.2016 directed for the refund of an amount of Rs.48.86 lacs with the awarded interest as per order dated 15.10.2008 as the Bank failed to prove the lifting of items worth Rs.46.85 lacs out of sale amount. The order being just fair and equitable requires no interference as it does not suffer from any illegality. The amount has been withheld for the last 19 years due to the stubborn attitude of the Bank.

10. Considered the submissions of parties. In view of the submissions made above, following are the points for determination under this appeal- by:// \\\' 'y”

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a. Whether the auction purchaser has not paid full auction amount or there has been any dues or the irregularity in payment?

b. What is the effect of non production of goods taken by the respondent under 'Supurdari’?

c. Whether the impugned order is bad for want of natural justice?

d. Whether there had been any theft of the movable properties of the JD under the custody of the DH, if any what is its valuation?

e. Whether the impugned order is bad for not adjusting charges against rent and security?

11. Let us discuss these points one by one- so far as 10.1 is concerned it is admitted fact that this question has been decided in the appeal 26/2002 by this tribunal. Para 27 of the judgment dated 13.01 2004 runs as under- “27- in the facts of this case since the Auction purchaser has paid the full auction bid amount, and has already lifted part of the movable property. In absence of no fault of the auction purchaser , the question of setting aside the court sale of movables at this belated stage does not arise." The appellant was one of the parties in that appeal and the order is binding upon him. Any question of irregularity in payment can not be taken at this belated stage.

12. It has been submitted for the appellant that Despite non-compliance of order dated 30.09.2014 by the respondent to produce the movable kept with him under 'superdari’, the Recovery Officer proceeded further and passed impugned order dated 29.12.2016. At this stage it shall be necessary to consider the nature of 'supurdari’ and effect of non production of property given under 'supurdari’. The term “supurdari” should not be equated or confused with IIking of ap dt

DRT,PATN A Appeal No.3 of 2017[J] purchased items. “Supurdar" holds the property under a trust to take care of without claiming ownership over the property taken under “supurdari". The impugned order is confined only to the movables sold in auction to the Auction purchaser and it does not relate to the articles or the property given under “supurdari”. As such only the goods sold but not delivered to the Auction purchaser, have been taken into consideration for the purpose of refund of unsupplied/undelivered items. It is thus clear that non compliance of order dated 30.09.2014 has no effect in the present controversy. The Recovery Officer may pass a separate order regarding that property (taken under SUPURDARI) at suitable stage

13. Regarding point for determination No.-10.3, it has been alleged that The impugned order was passed in absence of conducting counsel of the Bank. In this regard it is admitted that the law officer, Branch Manager and Assistant General Manager were present before the Ld It is not a case of the appellant that any submissions made by the had not been considered As such when nothing was submitted despite their presence, the deprivation of principles of natural justice cannot be attributed. The officers of the appellant were not there as spectators .

14. Point No.10.4 is whether there had been any theft of the movable properties of the JD under the custody of the DH, if any what is its valuation? it has been alleged that the Ld. Recovery Officer did not take into account the items stolen. Buy the auction purchaser, though. The learned recovery officer observed. himself in order dated 05.09.2014 observed that “Any large scale theft may not be possible, in any case, most of the movables were basically extremely heavy iron stores which could not be removed without the help of proper carriage and instruments like gas cutters, cranes etc. Small- time thieves could at best have removed some Kilograms or quintals of iron, which might have been manually removed, as the gate was CCw

DRT,PATNA Appeal No.3 of 2017[J] locked at all times. The rest have been removed by the auction purchaser or his agent himself, or most have been lying in the premises". Further on 08.09.2014 it is observed that “Large scale gas cutting of the immovable iron pillars and iron garters have taken place. Iron beams from the brick structures have been removed. All the cuttings appeared to be old. The cuttings indicate that a planned removal of immovable items appears to be much more than the cost of the auctioned movable materials. Such cuttings surely could not be attributed to small-time burglary or theft. A well planned approach must have been there". These observations indicate that done other than the auction purchaser could manage such planned removal of movable items as only he was allowed to enter the premises with skilled labourers and Gas cutters. It is to be noted that the entire property of the JD was in custody of the Appellant. The appellant had a responsibility to make proper arrangements of security and also to make the arrangements for keeping account of the stock under sale and its delivery to the Purchaser. Without giving the details of the items stolen and its valuation, it cannot be expected from the Ld. Recovery officer to supply figures on his own though it has been observed by him that there was a well planned theft. As such to claim any adjustment of the amount allegedly stolen by the auction purchaser, it was required from the Appellant to produce evidence of the items stolen, its valuation along with the proof that this theft had been made by the Auction purchaser. No register of entry and exit with details of movabIes has been produced by the appellant. As such in absence of the best evidence that could have been produced by the Appellant himself, the impugned order cannot be termed as defective for not taking the stolen articles into account.

15. It has been alleged that Ld. Recovery Officer vide order dated 21.07.2009 directed to the Bank to depute the security guards

DRT,PATN A Appeal No.3 of 2017[J] with immediate effect till further order and any expenditure has arrived on such services will be shared 50% each by the CH Bank and the auction purchaser or its representative. Without adjusting the aforesaid charges, the impugned order is bad for not adjusting charges against rent and security. On this allegation the point for determination has been formulated as 10.5. On the other hand it is the case of the respondent that the appellant has failed to make proper security arrangements that resulted into a large scale theft of the movables including the items sold to the Auction Purchaser which were kept under the custody of the CH/ Appellant. The items sold to the Auction purchaser could not be lifted by him due to non cooperation of the CH appellant. Various rounds of litigations and stay orders at the instance of appellant caused inordinate delay in lifting purchased articles. It is not disputed that there had been theft from the stock kept under the custody of the CH. As the appellant has no account and details of the items stolen, it is proved that the proper security arrangements were not there. Basically and as principle the CH was under obligation to keep the property under safe custody. However when some items were sold to the Auction purchaser and there was delay in lifting the purchased movables due to various disputes and litigations, the Recovery passed an order to share the expenses of security with the auction purchaser to assist CH in protecting safety of the property. But as the property could not be kept secure, no charges can be claimed by CH for the services not provided. The theft is the result of improper arrangement of security. The appellant cannot claim the charges for the services not adequately or effectively provided by him. As such the adjustment of such charges cannot b£laimed

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16. In view of the above discussion, present appeal is devoid of merits and deserves to be dismissed with cost and costs.

ORDER

The Appeal, filed by the appellant, is dismissed with costs. Concerned Ld. The recovery officer is directed to conclude recovery proceedings expeditiously, preferably within six months. Any frivolous adjournment if sought, be avoided. A copy of this order be given to the parties as well as to Id. Recovery Officer of this Tribunal. Judgment signed, sealed, dated and pronounced in the open court on this 27th Day of January, 2026. Dictated & corrected by me. P/ i_/F’ [KaushalendraYadav] Presiding Officer Debts Recovery Tribunal, Patna