Utamkumar P. Nangalia vs Bank of Baroda on 11 June 2026

**ORDER**

1. 1. The Applicants have filed the present Miscellaneous Application for taking appropriate disciplinary actions against the concerned officer of the Respondent Bank for disobedience and violation of order dated 15/05/2019 passed by this Tribunal while disposing of IA No.249/2019 in SA No.323/2017.

2. 2. The facts of the case, as pleaded by the Applicants, are that the Applicants challenged actions of the Respondent Bank taken u/s 13(2) and 13(4) of SARFAESI Act by means of SA No.323/2017 u/s 17 of the said Act. During the pendency of the said SA, the Respondent Bank obtained order dated 23/03/2018 passed by Ld. District Magistrate, Surat u/s 14 of SARFAESI Act for taking physical possession of the properties in question.

3. 3. During the pendency of the said SA, the Respondent Bank's Ld. lawyer Mr. D. D. Chauhan submitted one Purshis on 05/02/2019 and submitted that he has already informed the Law Officer of the Respondent Bank not to take possession of the properties in question on that day. Based on the said statement of Ld. lawyer at the Bar, this Tribunal restrained 2MA 29 of 2019

the Respondent Bank from taking physical possession of the properties in question on 05/02/2019 by passing judicial order on that date.

1. 4. Despite the aforesaid statement made by lawyer of the Respondent Bank at the Bar and the judicial order passed by this Tribunal relying on the said statement, the concerned officer of the Respondent Bank had taken forcible possession of the secured assets on 15/02/2019.

2. 5. Due to aforesaid action of the Respondent Bank, the Applicants preferred IA No.249/2019 in SA No.323/2017 seeking restoration of possession of secured assets. By allowing the said IA, this Tribunal directed the Respondent Bank to restore possession of the secured assets to the Applicants by passing order dated 15/05/2019.

3. 6. Being aggrieved by the order dated 15/05/2019 passed by this Tribunal, the Respondent Bank preferred an appeal before Hon'ble DRAT, Mumbai, which was dismissed in default and Miscellaneous Application seeking recall of the dismissal order is still pending before Hon'ble DRAT and no stay order has been passed by Hon'ble DRAT, Mumbai against the order dated 15/05/2019 passed by this Tribunal.

4. 7. However, Mr. Meena, concerned Officer of the Respondent Bank has still not obeyed order dated 15/05/2019 passed by this Tribunal and has not restored physical possession of the properties in question to the Applicants till date. Thus, Mr. Meena has committed contempt of Court by disobeying and violating the order of this Tribunal. Hence, the Applicants have filed present Miscellaneous Application.

**Reply of Respondent Bank:**

1. 8. Respondent No.1 Bank has filed its Reply vide Exh.R/10 against the present Miscellaneous Application and has denied the statements, averments and allegations made by the Applicants. It has contended that the present Application filed by the Applicants is the gross abuse of the process of law and has been filed without any cause of action or without any default on the part of the Respondent Bank. The allegations made by the Applicants against Authorised Officer of the Bank are devoid of any merits and they are in gross violation of Section 32 of SARFAESI Act by which protection has been granted to Respondent No.1 Bank and its Officer against their any actions which have been acted in good faith and bona fide to recover huge public money. It is further contended that Respondent No.1 Bank challenged order dated 15/05/2019 passed by this Tribunal, before Hon'ble DRAT, Mumbai by 3MA 29 of 2019

means of Miscellaneous Appeal No.47/2019. However, the said Miscellaneous Appeal was dismissed due to non-appearance of Ld. Counsel on 15/06/2022. Subsequently, Respondent No.1 Bank filed Miscellaneous Application No.43/2022 on 05/07/2022 for restoration of Miscellaneous Appeal No.47/2019, which is pending before Hon'ble DRAT, Mumbai. It is further contended that the Applicants have filed the present Miscellaneous Application with mala fide intention to delay the SARFAESI action initiated by the Respondent Bank. Hence, the present Miscellaneous Application be dismissed with cost.

1. 9. I have heard Ld. Counsels for both the parties at length and perused the record.

2. 10. Upon perusal of order dated 15/05/2019 passed on IA No.249/2019 in SA No.323/2017 passed by the then in charge Presiding Officer of this Tribunal, it appears that the irresponsible approach and conduct of the Concerned Officials/ Officers of the Respondent Bank were observed in para 8 and 9 of the order as under:

*"8. It would be appropriate to observe that on 05/02/2019, Learned Counsel for the Respondent Bank suomoto volunteered that he has already informed Law Officer of Respondent Bank not to take possession on that day and on his said submissions, this Tribunal passed restrain order. As such practically the restrain was self- inflicted restrain.*

*9. Now it would be argued that Counsel for the Bank has failed to communicate the order of this Tribunal so there would not be any contempt on their part. It is further placed on record that same could not be communicated as phone of the respective officers were switched off. It is astonishing that when the persons concerned were on the task of taking possession and they had knowledge about the pendency of the matter and date of hearing, they switched off their phones, if at all, we believe the version of the Bank as placed before this Tribunal. But the Counsel for Applicants have come with different version that officers were using mobile phones at the time of taking possession. Without going into the merits whether the phones were switched off or there was no communication of deliberation made before this Tribunal to the concerned officials who took the possession, I intend to make*

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*emphasis whether the knowledge, or notice or an undertaking or deliberations given by the advocate in the Court would be binding on the party to list to whom Counsel is representing in a particular matter itself or not."*

1. 11. It further appears that after above observations, this Tribunal had directed the Respondent Bank to restore possession of the secured assets to the Applicants within 7 days from the date of the said order.

2. 12. It further appears on perusal of the record of SA No.323/2017 that pursuant to the order dated 15/05/2019 passed by this Tribunal, the Applicants issued a Written Communication to the Respondent Bank to which concerned Bank Officer, namely, Mr. Pratap Singh Meena, Chief Manager, stated that he has received instructions from his Higher Authorities to file Appeal before Hon'ble DRAT and therefore he was unable to restore possession.

3. 13. Accordingly, the Respondent Bank appears to have preferred Miscellaneous Appeal No.47/2019 before Hon'ble DRAT, Mumbai. The said Appeal was dismissed for default on 15/06/2022. Thereafter, the Respondent Bank filed Miscellaneous Application for restoration of the said Appeal which is pending for adjudication.

4. 14. In view of the aforesaid facts emerging from record of SA No.323/2017, it becomes evident that Miscellaneous Appeal No.47/2019 filed by the Respondent Bank before Hon'ble DRAT, Mumbai has been dismissed for default and the said Miscellaneous Appeal has not yet been restored. Hence, it seems that the Respondent Bank is trying to avoid implementation and execution of the order dated 15/05/2019 passed by this Tribunal for restoration of possession of the secured assets to the Applicants within 7 days from the date of order, under the guise of pendency of Appeal before Hon'ble DRAT, Mumbai.

5. 15. Before parting with the judgment in the present case, it is pertinent to refer to the following observations of the Hon'ble Supreme Court in the case of **Vijay Syal & Anr. v. State of Punjab & Ors., (2003)9 SCC 401**:

*"In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands*

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*of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice."*

1. 16. While partly allowing the present Application, there is another important facet of this case which cannot be ignored by this Tribunal. It relates to the conduct of the Authorized Officer of the Respondent Bank. He has jeopardized the interest of the Bank and consequently the Recovery of public funds. The legislative object of expeditious recovery of all public dues and due protection of security available with the bank to ensure re-payments of debts cannot be achieved when the officers/officials of the bank act in such a callous manner. **There is a public duty upon all such officers/officials to act fairly, transparently and with sense of responsibility to ensure recovery of public dues. Even, an inaction on the part of the public servant can lead to a failure of public duty and can jeopardize the interest of the State or its instrumentality.**

2. 17. In the considered opinion of this Tribunal, the scheme of the SARFAESI Act and language of its various provisions imposes an obligation upon the banks / financial institutions to ensure a proper and expeditious recovery of its dues. In the present case, there is certainly ex-facie failure of statutory obligation on the part of the bank and its officers/officials. In the entire record before this Court, there is no explanation much less any reasonable explanation as to why the concerned officer of the Respondent Bank flagrantly violated the order passed by this Tribunal on 15/05/2019 in SA 323/2017 to restore possession of the secured assets. **The concept of public accountability and performance is applicable to the present case as well. These are instrumentalities of the State and thus**

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all administrative norms and principles of fair performance are applicable to them with equal force as they are to the Government department, if not with a greater rigor. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office.

1. 18. In the case of State of Bihar v. Subhash Singh, (1997) 4 SCC 430, the Hon'ble Apex Court, in exercise of the powers of judicial review, stated that the doctrine of full faith and credit applies to the acts done by officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.

2. 19. *Inaction, arbitrary action or irresponsible action would normally result in dual hardship. Firstly, it jeopardizes the interest of the financial institution and public funds are wasted and secondly, it even affects the borrower's interest adversely provided such person was acting bonafide. Both these adverse consequences can easily be avoided by the authorities concerned by timely and coordinated action. The authorities are required to have a more practical and pragmatic approach to provide solution to such matters. The concept of public accountability and performance of functions takes in its ambit proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State instrumentalities and/or by the financial institutions. In the case of Centre for Public Interest Litigation & Anr. v. Union of India & Anr. [(2005) 8 SCC 202], the Hon'ble Apex Court declared the dictum that State actions causing loss are actionable under public law and this is as a result of innovation to a new tool with the court, which are the protectors of civil liberty of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action, which essentially must not lack bonafide was enforced by the Court. **All these principles enunciated by the Hon'ble Apex Court over a passage of time clearly mandate that public officers are answerable both for their inaction and irresponsible actions. What ought to have been done, if not done, responsibility should be fixed on the erring officers***

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***then alone the real public purpose of an answerable administration would be satisfied.***

1. 20. Moreover, the Respondent Bank has wasted precious time of this Tribunal by taking casual approach while exercising the drastic powers conferred upon it for recovery of public funds. This type of lackadaisical and lethargic approach on the part of the public officers culminates into piling of cases in Courts and due to such huge pendency, delay takes place in imparting justice by Courts in genuine cases which are waiting for their turn since number of years. It is pertinent to note, as observed in recent decisions of the Hon'ble Apex Court, that the Government or public sector undertakings are parties in major pending litigations.

2. 21. In view of my aforesaid discussion, I am of the opinion that the concerned Officer of the Respondent Bank is required to be directed to pay cost of Rs.5,00,000/- towards negligence shown in discharge of his duty while dealing with public funds and for causing hardship and harassment to the Applicants. Hence, I pass the following order:

**Order**

1. 1. The Miscellaneous Application is partly allowed.

2. 2. The Authorised Officer of the Respondent Bank is directed to restore physical possession of the secured assets to the Applicants forthwith.

3. 3. The Authorised Officer of the Respondent Bank is directed to deposit an amount of Rs.5.00 lacs (Rupees: Five Lacs only) with the **National Defence Fund Account No.11084239799 (IFSC: SBIN0000691)** with **State Bank of India, Institutional Division, 4^th Floor, Parliament Street, New Delhi, within 7 days, receipt of which be deposited before Ld. Registrar.**

4. 4. This Tribunal notes with serious concern that despite the specific and unequivocal directions contained in the order dated 15/05/2019, directing restoration and handing over of possession of the subject properties to the Applicant/ Borrowers, the concerned Officers of the Respondent Bank have failed to comply with the said order. The conduct of the concerned officer appears to be deliberate and wilful 8MA 29 of 2019

disregard of the orders of this Tribunal and is wholly unbecoming of an officer of a public financial institution. Such conduct tends to undermine the authority of judicial and quasi-judicial forums and cannot be countenanced. **Accordingly, the General Manager of the Respondent Bank is directed to examine the matter forthwith and initiate appropriate departmental/ disciplinary proceedings against the officer(s) responsible for non-compliance of the Tribunal's order. A compliance report indicating the action taken shall be placed before this Tribunal within a period of one month from the date of receipt of this Order, failing which the Tribunal shall be constrained to consider further action in accordance with law against the defaulting officer(s) as well as the concerned officials responsible for ensuring compliance of judicial orders.**

1. 5. The file be consigned to records.

**(PANKAJ KUMAR UPADHYAY) PRESIDING OFFICER DRT-II, AHMEDABAD**

\*stl\*