Shri Chamunda Furniture vs RAJKOT NAGRIK SAHAKARI BANK LIMITED on 23 October 2023

**ORDER**

1. 1. The Applicants have filed the present application seeking extension of time for a period of two months to enable them to comply with the order dated 23/06/2023 passed by this Tribunal in S.A. No.440/2023.

2. 2. I have heard Ld. Counsel for the parties and perused the documentary evidence on record.

3. 3. It is the case of the Applicants that they had filed SA No.440/2023 before this Tribunal, which was disposed of vide order dated 23/06/2023 on the basis of undertaking filed by them. The Applicants have further averred that in compliance of the order dated 23/06/2023 passed by this Tribunal, the Applicants had approached the concerned branch of the Respondent-Bank for settlement under OTS and requested the Respondent-Bank orally to provide with the details of the outstanding amount, including bifurcation, as one Mr. Sanjaybhai Thakker was ready and willing to settle the dues of the Applicants with the Respondent-Bank. However, nothing was heard thereafter from the Respondent-

Bank. The Applicants have further stated that said Mr. Sanjaybhai Thakker, friend/relative of the Applicants, met with an accident on 30/08/2023 and was hospitalized and still Mr. Sanjaybhai Thakker is likely to take four to six weeks' time to recover fully from his medical exigencies. The Applicants have further stated that the Applicants are ready and willing to hand over possession of one more immovable property mentioned at Sr. No.2 in the Demand Notice dated 06/12/2022 in the account of M/s. Chamunda Furniture. They have further stated that the time for compliance in terms of the undertaking and in terms of the order dated 23/06/2023 is going to get over on 23/09/2023 and the Respondent-Bank may take physical possession of the properties in question after 23/09/2023. They have further stated that no harm or prejudice is likely to be caused to the Respondent-Bank if the present application is allowed. It appears from the record that the Applicants approached the Hon'ble DRAT, Mumbai, by means of M.A. No.99/2023 seeking expeditious disposal of the present M.A. The Hon'ble DRAT has been pleased to pass the following order on 11/10/2023 in M.A. No.99/2023:

*"4. The Respondent has been served. I find no harm in making an order directing the D.R.T. to dispose of M.A. No. 36/2023 as expeditiously as possible at any rate within a period of one week from the date of receipt of this order."*

1. 4. In view of the aforesaid order, the present M.A. has been taken up for hearing on priority basis and is being disposed of by this order.

2. 5. On perusal of record, it appears that S.A. No.440/2023 was disposed of by this Tribunal vide order dated 23/06/2023, which reads as under:

*"a) The Applicants shall abide by the submissions made in the purshis cum undertaking Exh.A/06 so filed today before this Tribunal and statement made at Bar. Accordingly, the Applicants are directed to handover the possession of immovable property mentioned at sr. no.1 in the Demand Notice dated 06.12.2022 in the account of M/s.Chamunda Furniture i.e. property situated at Rajkot Dist., Sub Dist. Rajkot, Rajkot City in Gondal Road, City Survey Ward No.7, City Survey No.2899 land on "Plenary Arcade" Commercial Sankul Paiki First Floor Shop No.125, admeasuring built-up area approx. 22.87 sq. mtrs (245-41 sq. feet) within a period of 15 days from today.*

*b) Further, Applicants are directed to approach the Respondent Bank for settlement under OTS qua the remaining immovable properties mentioned in the Demand Notice dated 06.12.2022 pertaining to both the accounts, as stated above, within a period of three months, failing which the Applicants shall voluntarily handover the peaceful possession of all the remaining immovable properties as mentioned in the Demand Notice dated 06.12.2022 in favour of the Respondent Bank.*

*c) Respondent bank is directed to defer its action/measures under SARFAESI Act, 2002 for a period of three months to enable the Applicants to comply with the order passed by this Tribunal, as stated above.*

*d) Time is/will be the essence of this compromise and Applicants will not be entitled for any time extension in future.*

*e) The Applicants waive all their grounds and objections taken in the present Securitisation Application. Further, all pending IAs, if any, along with this Securitisation Application, stands disposed of."*

6. It is an admitted position that the Applicants have failed to comply with the undertaking filed by them before this Tribunal vide Exh.A/6 in S.A. No.440/2023. The order dated 23/06/2023 passed by this Tribunal cannot mean anything more than an agreement between the Applicants and the Respondent with the sanction of the Tribunal. When a person gives an undertaking to the Court, it is not given to the otherside but to the Court itself, and that being said must carry sanctity. Therefore, when a Court passes a decree/order after an undertaking was embodied in the consent terms, it would show that the Court had sanctioned the particular course. The undertaking given vide Exh.A/6 in the S.A. was the /

basis and foundation of the favourable order. When a person gives an assurance in the form of undertaking to the Court, which he had no intention to fulfill or knew that it was a mere false promise, it would amount to an Act of fraud practiced on the Court to procure an order that otherwise would not have passed. In the present case, the Applicants have filed the present M.A. before this Tribunal on 19/09/2023 i.e. just four days prior to the last date for compliance of the order passed by this Tribunal.

1. 7. In view of the aforesaid facts and circumstances, it becomes evident that the Applicants conduct has put the Respondent-Bank in a position where they have lost time and action of the Bank on the subject properties has been delayed at the behest of the Applicants. Taking into consideration the entire facts of the case, which reflect disingenuous conduct on the part of the borrower to gain indulgence and unfulfilled assurances and promises, this Tribunal is of the view that no further time can be extended for compliance of the order dated 23/06/2023. Hence, the following order is passed:

**ORDER**

1. 1. The present M.A. is hereby dismissed with no order as to cost.

2. 2. File be consigned to record.

Pronounced in Open Court on this 23^rd day of October, 2023.

(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

\*sruthi\*