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2015 DIGILAW 1136 (GUJ)

Rahul Deo Kirankumar Singh v. IDBI Bank Ltd.

2015-10-30

ABHILASHA KUMARI

body2015
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article-226 of the Constitution of India has been preferred, with the following prayers: "(a) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, quashing and setting side E-Auction Sale Notice dated 30.9.2015 published by the respondent No. 1 in connection with property in question. (b) By way of interim relief pending hearing and final disposal of the present petition, direct the respondent No. 1 to not to carry out any activity of auction which scheduled on 3.11.2015 in connection with E-Auction Sale Notice dated 30.9.2015 in the interest of justice. (c) Grant any other relief/s as may deem fit in the interest of justice." The facts of the case, as described in the petition are briefly stated. 1.1. Respondent No. 3 herein, was the Director of respondent No. 2-Company which had in its employ, more than 1400 employees. According to the petitioner, he, and other similarly situated persons were working under respondent No. 2 for the past many years. It is the case of the petitioner that respondent No. 2 - Company, in collusion with its Director, respondent No. 3, had allegedly committed illegal acts and indulged in unfair labour practice by not paying the salaries and other legal dues of the employees, including those of the petitioner, for more than ten months. Some of the employees, including the petitioner, preferred applications under section 15(2), (3) of the Payment of Wages Act, 1936 seeking recovery of their legal dues. Applications under Section 17-A of the Payment of Wages Act, 1936, seeking attachment of the properties of respondent No. 3 were also preferred. The Labour Court (respondent No. 4) passed an order dated 21.2.2015, in P.W. Application No. 341/2013 allowing the application of the petitioner and directing the attachment of the property of Bungalow No. 12, Ashwaraj Bungalows, Prahlad Nagar, Satellite Road, Ahmedabad, under section-17(A) of the Payment of Wages Act. 1.2. Respondents Nos. 2 and 3 are the defaulting borrowers of respondent No. 1-IDBI Bank. The respondent-Bank issued a public notice for E-Auction Sale of the secured assets, including Bungalow No. 12, Ashwaraj Bungalows, which was attached by the above order of the Labour Court. 1.2. Respondents Nos. 2 and 3 are the defaulting borrowers of respondent No. 1-IDBI Bank. The respondent-Bank issued a public notice for E-Auction Sale of the secured assets, including Bungalow No. 12, Ashwaraj Bungalows, which was attached by the above order of the Labour Court. According to the petitioner, the respondent-Bank could not have issued the said impugned notice in respect of the property attached by the Labour Court. 1.3. The petitioner filed written objections with the respondent-Bank informing it about the order of the Labour Court. However, the respondent-Bank, once issued a second notice dated 27.2.2015 for E-Auction Sale of the property in question. The E-Auction Sale was scheduled to take place on 30.3.2015. The present petitioner, along with four others, approached this Court by filing Special Civil Application No. 5441/2015, which came to be rejected by an order dated 30.3.2015. According to the petitioner, in the said order liberty was granted to the petitioners to approach the Bank and the appropriate Forum. The petitioner filed an application, being P.W. Application No. 341/2013 at Exhibit-29, before the Labour Court, arraying respondent No. 1-Bank as a party-respondent. Summons were issued to the Bank, but it did not respond to them or file a reply. The application is still pending. In the meanwhile, the respondent-Bank has issued a third E-Auction Sale notice dated 30.9.2015. Aggrieved thereby, the petitioner has approached this Court by way of the present petition. 2. Mr. K.I. Kazi, learned advocate for the petitioner has submitted that though this Court has rejected the earlier petition to which the petitioner was a party and which was filed for the same relief, however, in the present petition, the third auction sale notice is being challenged. The petitioner has approached this Court for the reason that this Court had left it open to the petitioner to take proper recourse under the law. The petitioner filed an application at Exhibit-29 before the Labour Court, as the main proceedings under the Payment of Wages Act are still pending. In the meanwhile, the respondent-Bank has issued the impugned E-Auction Sale notice dated 30.9.2015, which has necessitated the filing of the present petition. 3. The petitioner filed an application at Exhibit-29 before the Labour Court, as the main proceedings under the Payment of Wages Act are still pending. In the meanwhile, the respondent-Bank has issued the impugned E-Auction Sale notice dated 30.9.2015, which has necessitated the filing of the present petition. 3. It is further submitted that in spite of arraying respondent No. 1-Bank as party-respondent in the application before the Labour Court, the said Bank has not chosen to respond to the summons issued by the Labour Court and the stage of reply has also been foreclosed. The application is still pending and if, in the meanwhile, the E-Auction of the property in question takes place, the petitioner and other employees would be deprived of their legal dues. 4. This Court has heard the learned advocate for the petitioner at length, perused the averments made in the petition and other documents annexed thereto. 5. From the material on record, it clearly emerges that the petitioner, among others, had approached this Court by filing Special Civil Application No. 5441/2015, for the same cause of action, that is, the E-Auction Sale notice issued by respondent No. 1-Bank in respect of the secured assets under the Securitisation Act, which includes Bungalow No. 12, Ashwaraj Bungalows, Prahlad Nagar, Ahmedabad, that has been attached by the Labour Court by an order dated 21.2.2015, passed in Payment of Wages Application No. 341/2013. The said order is an interim one and the main proceedings are still pending. It may be true that the date of the notice impugned in the present petition has changed, being 30.9.2015. However, the cause of action is still same and the notice is in respect of the very same property. 6. For the sake of clarity, the prayers made by the petitioners in the earlier petition, as can be seen from the order dated 30.3.2015 of this Court are reproduced hereinbelow: "2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:- (a) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, quashing and setting aside E-Auction Sale Notice dated 27.2.2015 published by the respondent No. 1 in connection with property in question. (b) By way of interim relief pending hearing and final disposal of the present petition, direct the respondent No. 1 to not to carry out any activity of auction which scheduled on 30.3.2015 in connection with E-Auction Sale Notice dated 27.2.2015 in the interest of justice." 7. While passing the said order, this Court has taken into consideration the merits of the matter and has arrived at the following conclusion: "8. The impugned notice clearly indicates that the property is put to auction on as is where is basis. In light of the aforesaid therefore, no further clarification is required to be made by this Court. It would be open for the petitioners to again lodge their claim before respondent No. 1 Bank and take appropriate recourse available under the law as the issue is still pending before the Labour Court. 9. The petitioners are not concerned with the property as such, but they are concerned with the dues, if found to be legal and due and therefore, it would be open for the petitioners to lodge their claim for recovery of such amount as the property is to be sold on as is where is basis. The petition is misconceived and the same is filed on the eve of the e-auction only to see that the proceedings of auction under the SARFAESI Act are not undertaken. It may further be noted that after issuance of the public notice, petitioner No. 1 approached the authority under the Payment of Wages Act by way of filing P.W. Application No. 341 of 2013, wherein the Labour Court has already passed an order dated 21.2.2015. As far as the petitioners are concerned, they are not directly concerned with any proceedings under the SARFAESI Act. The notice itself indicates that a symbolic possession as provided under section 13(4) of the SARFAESI Act was taken at least on the date on which the impugned notice is issued on 27.2.2015. It may be noted that the action under the SARFAESI Act is between the Bank and the borrower and the security given by the borrower is subject matter of the impugned notice. In light of the orders passed by this Court, no interference under Article 226 of the Constitution of India is required as the auction notice was given by the respondent-Bank after following due process of law. 10. In light of the orders passed by this Court, no interference under Article 226 of the Constitution of India is required as the auction notice was given by the respondent-Bank after following due process of law. 10. The petition is thus liable to be rejected and the same is hereby rejected. There shall be no order as to costs." 8. From the above, it is evident that the earlier petition filed by the petitioner, and others, has been rejected on merits. It has clearly been held by this Court that, insofar as the petitioners of that petition are concerned (which includes the present petitioner), they are not directly concerned with the proceedings under the Securitisation Act. Symbolic possession of the property has already been taken under Section 13(4) of the Securitisation Act and the action under the said Act is between the secured creditors and the borrower. The same secured asset is the subject-matter of the impugned notice, and the position remains the same in the present case. Only the date of the E-Auction Sale notice has changed as, on two previous occasions, the E-Auction Sale did not take place. 9. Once an adjudication on merits has been undertaken and concluded by this Court, it is not open to the petitioner to approach the Court again, or re-agitate the same issue, by filing a subsequent petition on the same cause of action. This is nothing but an abuse of the process of the Court and, that too on the eve of the E-Auction. The very same modus operandi was undertaken by the present petitioner, and others, by filing Special Civil Application No. 5441/2015 wherein this Court has observed that said petition is misconceived and has been filed on the eve of the E-Auction only to see that the proceedings of auction under the Securitisation Act are not undertaken. The same finding applies in the present case, as well. 10. The submission advanced by the learned advocate for the petitioner that, in paragraph-3 of the order dated 30.3.2015, passed by this Court in Special Civil Application No. 5441/2015, liberty was granted to the petitioner to approach appropriate Forum, is not wholly correct. The same finding applies in the present case, as well. 10. The submission advanced by the learned advocate for the petitioner that, in paragraph-3 of the order dated 30.3.2015, passed by this Court in Special Civil Application No. 5441/2015, liberty was granted to the petitioner to approach appropriate Forum, is not wholly correct. The words used by this Court were "It would be open for the petitioners to again lodge their claim before respondent No. 1-Bank and take appropriate recourse available under the law as the issue is still pending before the Labour Court". This can, by no means be twisted and misconstrued as liberty to approach this Court again. As is clear from the reproduction of the earlier order of this Court, the petition has been rejected without any liberty being granted to approach the Court again. 11. Once there is a concluded adjudication upon an issue as in the present case, there can be no re-agitation of the same issue subsequently. Neither can this Court sit in review or appellate jurisdiction over its own order. This Court is, therefore, unable to entertain the petition as, not only is it wholly misconceived, but it is also an abuse of the process of the Court. The petition is rejected with costs of Rs. 2,500/- (Rupees Two Thousand Five Hundred only), to be paid by the petitioner to the Secretary, Gujarat High Court Legal Services Authority, within a period of one week from today.