Debts Recovery Tribunals and Appellate Tribunals
Ms Chandra Engineering Works vs The Authorised Officer M/s Hinduja Leyland Finance on 16 July 2021
MA No.17/2018 1
in SA. No.161/2018
**IN THE DEBTS RECOVERY TRIBUNAL II, KARNATAKA
AT BENGALURU**
Dated this the 16<sup>th</sup> day of July 2021
**Present: SMT. S. V. GOWRAMMA**
**Hon`ble Presiding Officer**
**MA.No.17/2018**
**In**
**S.A. No.161/2018**
**BETWEEN:**
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1) M/s. Chandra Engineering Works Prop. M.K. Gunashekar No.3/1, Site No. 11, Chandra Bhavan Near Venkateshwara Temple Chuikka Audugodi Bangalore - 560029
2) Mr.Gunashekar S/o Late L. Krishnamurthy
3) Smt. Ramani Guna W/o Mr. Gunashekar
4) Mrs. Harshitha G D/o Sri Gunashekar
All are residing at: No.3/1, Site No.11, 11, Chandra Bhavan Near Venkateshwara Temple Chikka Audugodi Bangalore - 560029.
**...APPLICANTS**
**AND:**
The Authorised Officer M/s. Hinduja Leyland Finance Ltd. No.2/6, Above Max Hero Showroom 3<sup>rd</sup> Block, Bangalore - 560010.
**...RESPONDENT**
MA No.17/2018 2
**Counsels on record/appeared for:**
Applicant : Sri. M.A. Rajendra Respondent : Smt. Anitha
**ORDER ON MA. No.17/2018**
1. The Misc. Application 17/2018 is filed by the borrower who had filed SA No.161/2018 aggrieved by Sec.14 Order passed by the Learned 6<sup>th</sup> Additional Chief Metropolitan Magistrate, Bengaluru.
2. It is contended in the SA 161/2018 that the Order under S.14 Order which was under challenge, is not in conformity with the provisions of the Act and the Tribunal vide Order dated 20.06.2018 had stayed the impugned order granting liberty to the respondent to get the S.14 petition and for modification of Order passed in Crl.Misc. 2045/18 and liberty was granted to the applicant to amend the SA.
3. Accordingly, the respondent has filed the application for modification of Order which came to be modified vide order dated 10.08.2018 against which the applicant has preferred the present Misc. Application.
4. It is contended in the MA, that the schedule property is occupied by tenants under a lease/rent agreement and the respondent bank suppressing the facts has obtained the Order from the Hon'ble ACMM court and the tenancy created is much MA No.17/2018 3
before the creation of mortgage. Hence, the applicant has prayed for stay of the Order dated 10.08.2018 passed by the Hon'ble 6<sup>th</sup> ACMM Court, Bangalore.
5. It is further submitted that the Tribunal in SA No. 161/2018 had directed the respondent company to get the order in C.Misc. amended suitably and gave liberty to applicant to amend their prayer in SA and also directed the respondent to amend their prayer on the basis of real material facts.
6. Further, it is contended that the averments made in main SA be taken as a part and parcel of Misc. Application and has prayed to restore the SA No.161/2018; and to declare the measures initiated by the respondent company under Sec.14 are legally invalid and unsustainable.
7. The respondent company in their objections inter alia contended that the respondent is recognized as Secured Creditor within the meaning of Section 02 Clause (zd) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 vide Notification No.-SO.2641(E) dated 05.08.2016 issued by Ministry of Finance.
8. It is contended that the applicants admittedly breached the loan agreements of the credit facilities resulting in initiating of the measures under the Act. Aggrieved by the measures, the applicant has filed SA No. 161/2018. The MA No.17/2018 4
respondent has refuted the contentions raised in the SA and has substantiated the measures initiated by respondent company.
9. The present application seeking stay of the operation of the order passed by the Ld. 6<sup>th</sup> ACMM in Crl.Misc.Pet.No: 2045/2018 and to set aside the said order is liable to be dismissed as no valid grounds are made out to entertain the present application.
*Heard the submission of both the counsels and perused the records.*
10. The issue before this Tribunal for consideration is whether Miscellaneous Application is maintainable in view of the order passed by this Tribunal on 20.06.2018. The Tribunal in SA No. 161/2018 after hearing the both counsels Learned counsel had stayed Sec.14 order giving liberty to the respondent to get the order passed by the Ld. 6<sup>th</sup> ACMM in Crl.Misc.No: 2045/2018 modified and gave liberty to applicant to amend the SA. Further, it is seen clarified that the interim order of stay will be functional till amendment of impugned order.
11. It is revealed from the records that the bank approached Ld. 6<sup>th</sup> ACMM for modification of order as per the direction of the Tribunal. Though, the applicants had filed letter dated 10.08.2018 and copy of the judgement in WP No. 28622/2017 where Magistrate order was stayed along with the MA No.17/2018 5
copy of Rental agreements and Learned Magistrate as held that there are no tenants in possession of the property.
12. The Ld. Magistrate modified the Order appointing Advocate Commissioner in place of Sheristhedar to take the possession which is under challenge in the present Miscellaneous Application seeking for restoration of the SA.
13. The Order passed by this Tribunal in SA No. 161/2018 directing the bank to get a modified order and liberty was granted to the applicant in the SA i.e., the applicants in the present MA to amend the SA. Instated the applicant has filed the MA without complying the direction of the Tribunal for amendment and the interim order of stay granted stood vacated on the date of filing the bank filing the application before the Ld. Magistrate for modification of the Order.
14. Hence, the present MA is not maintainable seeking for restoration of the SA and if the applicant is aggrieved by the said modified order of the Ld. 6<sup>th</sup> ACMM, the remedy available to the applicant is under sec. 17 of the SARFAESI Act.
15. Furthermore, this vide Tribunal had also granted liberty of the applicant to amended SA, without availing the remedy has filed the MA abusing the process of law. Hence, there is no merit in the case, resultantly, the present Miscellaneous Application fails.
MA No.17/2018 6
16. Accordingly, MA No. 17/2018 stands dismissed. Interim Order granted if any stands vacated. Any pending IA's if any are disposed of in terms of this order. No order as to cost.
*(Dictated to the Stenographer (BL), after its transcription and necessary corrections, signed and Order passed on this day of 16<sup>th</sup> July, 2021)*
(Sd/-) **PRESIDING OFFICER** **DRT-2, BENGALURU.**
MA No.17/2018 7 in SA. No.161/2018
**APPENDIX**
**LIST OF DOCUMENTS PRODUCED BY THE APPELLANT**
<table border="1"><thead><tr><th><b>SI No.</b></th><th><b>Particulars</b></th><th><b>Annexure</b></th><th><b>Page Nos.</b></th></tr></thead><tbody><tr><td>1</td><td>Order in SA 161/2018</td><td>A</td><td>14-19</td></tr><tr><td>2</td><td>Order passed by CMM in C.Misc. 2045/2018</td><td>B</td><td>20-41</td></tr></tbody></table>
**LIST OF DOCUMENTS PRODUCED BY THE RESPONDENT**
<table border="1"><tr><td><b>NIL</b></td></tr></table>
(Sd/-) **PRESIDING OFFICER DRT-2, BENGALURU**
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