Ms Shiva Enterprises vs STATE BANK OF INDIA on 6 January 2023

**ORDER**

The present miscellaneous application is filed to recall the order dated 01.07.2019 passed in S.A.No.332/19 and pass necessary order of examining the violation committed by the Respondent Bank in bringing the property in question to sale. The facts leading to present application in nutshell are, 2D.No.1747/2019

the Appellants are the alleged borrowers who availed financial assistance from the Respondent Bank. The Respondent Bank has issued illegal sale notice and published the sale notice in the New Indian Express newspaper and the Appellants filed appeal in S.A.332/2019. However, this Tribunal vide order dated 01.07.2019 dismissed the appeal filed by the Appellants. The copy of the order is produced as Annexure-A1.

The contention of the Appellants is that the Tribunal did not pass orders on the grounds listed in the appeal. Simply, the Tribunal dismissed the appeal as infructuous. In support of the above contention, the Appellants relied on following case laws:

1. 1. Agarwal Tracom Private Limited Vs Punjab National Bank, (2018)1 S.C.C. 626.

2. 2. Loveleen Kaur and another V/s ICICI Bank Ltd. and others, 2017(1) D.R.T.C. 405 (Delhi).

In view of the above, the Appellants have sought for recalling the order dated 01.07.2019 passed in S.A. No.332/2019 as stated above.

2. Upon service of notice, Respondent Bank entered appearance through its Counsel and subsequently filed 3D.No.1747/2019

objections to the application filed by the Appellants. According the Respondent Bank, the application is not maintainable both in law and on facts and is liable to be dismissed in limine. The Respondent Bank denies all the averments made in the application save those which are expressly admitted by the Bank and put the Appellants to strict proof thereof. There is no ground for application to be maintainable and permissible under the Act. It is further submitted that no bidder participated in respect of schedule property and this Tribunal was pleased to dispose of the S.A.No.332/2019 as infructuous in the presence of both Counsels. Hence the question of passing of order on the other grounds does not arise at all. The order passed by this Tribunal in S.A.No.332/2019 is in accordance with law and if the Appellants are having any grievance of order passed by this Tribunal, they should have preferred an appeal before DRAT, Chennai.

The other allegations and grounds made in the application are hereby denied as false and baseless. The unnecessary averments/grounds are not met specifically as they are unwarranted in deciding the Application. When the sale of the schedule property has not taken place for want of bidders, the question of recalling the order dated 01.07.2019 passed in S.A.No.332/2019 does not arise. The grievances of the Appellants cannot be considered by this Tribunal which 4D.No.1747/2019

are imaginary. The Appellants are just wasting this Tribunal's valuable time by filing this Miscellaneous Application.

3. On the above background, I have gone through the available records of the case, heard the arguments addressed by the Counsels of both sides and the following points arise for my consideration:

- (a) Whether the Appellants have made out the case to allow the present application? and

- (b) To what relief, the parties are entitled?

**R E A S O N S**

4. In the present case, the Appellants were present before this Tribunal when the order of dismissal of the S.A. in question was passed. However, they did not choose to prefer any appeal against the said order of dismissal. Instead, they filed the present Miscellaneous Application seeking recall of the said order. The aforesaid order is quoted below:

"LCs for both pt

R.B. submit that sale which was challenged did not take place, for want of bidders. Hence S.A. is dismissed as infructuous."

5D.No.1747/2019

In this context, it is noticed that when the Respondent Bank issued the sale notice, the Appellants preferred S.A. No.332/2019, challenging the sale notice to be illegal and invalid. But, when the sale in question did not take place for want of bidders, the sale notice has itself become invalid, which was the prayer of the Appellants and therefore, nothing survives in the S.A., as a result of which the S.A. has become infructuous. The Appellants in the S.A. sought for setting aside the sale notice issued by the Respondent Bank, but for want of bidders, the sale notice became invalid as sale in question did not take place. Therefore, my Learned predecessor has passed the above order rendering the S.A. to be infructuous. In those circumstances, it is not necessary to examine other grounds urged by the Appellants in the Securitization Application. The judgments quoted above do not come to any help in favour of the Appellants in view of the facts and circumstances of the present case.

It seems that, the present application has been filed seeking review of the earlier order passed by the Tribunal in S.A. No.332/2019. Since the Appellants did not prefer any appeal before the Hon'ble Debts Recovery Appellate Tribunal (DRAT), this Tribunal finds that the Appellants have got statutory alternate remedy to challenge the orders 6D.No.1747/2019

which have been passed by the DRT and hence the present application cannot be entertained by this Tribunal. Accordingly, the application stands dismissed. The Appellants are free to avail themselves of the statutory remedy provided under the law, if they feel so aggrieved. I, therefore, pass following:

ORDER

In the result, D.No.1747 of 2019 (I.R. No.3345 of 2019) is dismissed.

Interim order, if any, stands vacated. Pending IAs, if any, also stand closed.

There will be no order as to cost.

(Dictated to the Stenographer, after its transcription and necessary corrections, signed and pronounced by me in the Open Court on this 6^th day of January 2023)

6.01.23 **(IMTIAZ ALI)** **PRESIDING OFFICER** **DRT-I, BENGALURU**

✽sr/ash✽