BHARTIYA HOTELS LIMITED vs 3i INFOTECH TRUSTEESHIP SERVICES LIMITED on 31 December 2024

<table border="1"> <thead> <tr> <th data-bbox="94 83 206 126">31.12.2024</th> <th data-bbox="206 83 248 126">Exh</th> <th data-bbox="248 83 838 126"><u>Roznama-MDRT-II</u><br/><u>M.A. No.139 of 2024</u></th> <th data-bbox="838 83 964 126">Next date</th> </tr> </thead> <tbody> <tr>

<td data-bbox="248 126 838 848"> <p>Advocate Mr. Sidharth Samantaray (through VC) for the Applicants.<br/> Advocate Mr. Santosh Bhide (through VC) a/w Vrushali Patil and Ms. Risha Alva proxy counsel for M/s. Argus Partenrs for the Respondents.</p> <p>As per counsel for the Applicants, the Applicants filed the S.A. No.20 of 2015, now, TSA No.74 of 2023 under Section 17 of SARFAESI Act, 2002, wherein, they challenged the legality of the action taken by Respondent No.2 vide notice dated 13.12.2013 issued under Section 13(2) of the SARFAESI Act and Notice dated 23.06.2014 purportedly issued under Section 13(4) of the SARFAESI Act and order dated 01.12.2014 passed by the learned Chief Metropolitan Magistrate and all other allied and connected actions taken by the Respondent in respect of Dunlop House, 132/A, Dr. Annie Besant Road, Worli, Mumbai and for declaration that the Respondent conduct purportedly carried out under the provisions of the SARFAESI Act are illegal, arbitrary, unreasonable and unjustified.</p> <p>The Applicants have further averred that they filed an I.A. No.1554 of 2022 inter alia for allowing the Applicants to carry out the amendment and grant an opportunity of hearing the S.A. on merits and during the pendency of the I.A., restrain the Respondents, their officers, servants, agents, assigns and successors in office from taking any further steps including the sale of the Dunlop House in any manner whatsoever and stay be granted to that end.</p> <p>The captioned matter was directed to be listed before this Tribunal on 27.09.2024 for compliance where Advocate for the Applicant was present however, none appeared on behalf of the Respondent and on request of the counsel for the Applicant, the case was adjourned to 30.10.2024 for the purpose already fixed. On 30.10.2024, the Advocate Mr.</p> </td>

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Bhavya Shah for the Applicant had logged in to the virtual hearing link on Webex and was waiting in the lobby for the matter to be called out but the same was not called out from the cause list. However, after the board of this Tribunal was over, the advocate for the Respondent without giving any notice to the Applicants, out of mala fide intent, mentioned the matter and got the matter dismissed. The Respondents have misguided this Tribunal and obtained the order in their favour.

According to the Applicants, the Respondent had mentioned before this Tribunal that the mortgaged property had already been auctioned with the permission of the Supreme Court, however, there has been no substantial evidence to show the same. The captioned matter has been disposed of for want of steps on behalf of the Applicants. The same was not completed by the erstwhile advocate of the Applicants. In view of the same, the required steps for the captioned TSA will be taken immediately after the restoration.

Learned counsel for the Applicants have prayed to restore the TSA No.74 of 2023 and grant time for which to comply with any and all defects in relation thereto.

After giving thoughtful consideration to the arguments advanced by the learned counsel for the parties and after perusal of Order-sheet, this Tribunal finds that on 30.10.2024, none appeared for the Applicants whereas, Mr. Santosh Bhide appeared for the Respondent and submitted that the property had already been auctioned with the permission of Hon'ble Supreme Court and this Tribunal assumed that Applicant was not interested in pursuing this case any further and dismissed the T.S.A. No.74 of 2023 for want of prosecution. Whereas, it is the plea of the Applicant that Mr. Bhavya Shah on behalf of the Applicant had logged in on the Virtual Hearing Link and they were waiting for the case to be called out but, case was not called out and matter was mentioned by the counsel for the Respondent and got the matter dismissed. Further, it is the

plea of the Applicant that one I.A. No.1554 of 2022 was pending and matter was earlier fixed for 27.09.2024 for compliance but, none appeared on behalf of the Respondent and case was adjourned to 30.10.2024 for the purpose already fixed. On 30.10.2024, counsel for Respondent made the statement that mortgaged property had been sold with the permission of Hon'ble Supreme Court and cause of action does not survive and got the matter dismissed which this Tribunal otherwise, would not have dismissed, even, for want of appearance of the Applicant or its counsel because this Tribunal being in-charge had been taking up only urgent matters and was not taking up the matters kept under caption dismissal except only those matters which are mentioned by the parties where either compromise have taken place or advocate for the Applicant had pleaded specifically to dismiss the case. It appears that the Applicants want to pursue the case and want the disposal of the I.A. No.1554 of 2022 on merits and no prejudice is going to be caused to the Respondent in case the S.A. is restored to its original number. It is settled law that no party should be condemned unheard and matter be decided on merits. Since the Applicants want to pursue their case on merits, so, the order dt.30.10.2024 is hereby set aside and T.S.A No.74 of 2023 is restored to its original number. No order as to costs.

Now, matter be taken up on 27.01.2025.

Typed by- Radhika, Stenographer

*John Kumar* I/c P.O. DRT-II 27.01.2025

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