JUDGMENT : A. ARUMUGHASWAMY, CHAIRPERSON 1. The Appellant is the borrower. 2. The Appellant has filed M.A. No. 593 of 2015 i.e. application for waiver of deposit. 3. The Appellant has filed S.A. No. 141 of 2015 before the D.R.T.-III, Mumbai and in that S.A. the Appellant has filed I.A. No. 678 of 2015 i.e. application for seeking for interim relief restraining the Respondent Bank from taking physical possession of the secured asset scheduled to be taken on 30th April, 2015 and D.R.T.-III, Mumbai has dismissed the Interim Application No. 678 of 2015 vide order dated 30th April, 2015 against which the Appellant has filed the present Appeal. 4. The Banker has issued Section 13 (2) notice dated 24th January, 2013 to the borrower calling upon her to make payment of Rs. 35,81,523/-. Second notice calling upon dated 20th June, 2013 to make the payment of Rs. 31,75,502/- was issued to the borrower. Against that order, the party has filed writ petition before the High Court since the D.R.A.T. was not available. The Hon'ble High Court vide order dated 6th May, 2015 in Writ Petition (L) No. 1361 of 2015 granted two weeks status quo and thereafter vide order dated 20th May, 2015 in Writ Petition No. 1172 of 2015 the High Court has extended the interim relief and thereafter by an order dated 17th June, 2015 passed by High Court in Writ Petition No. 1172 of 2015 the Banker has not handed over the possession and the contempt proceeding has taken against which the Banker has approached before the Hon'ble Supreme Court. The Hon'ble Supreme Court vide order dated 15th December, 2015 has directed to this Tribunal to decide the case on merits without influence of order of High Court. 5. The Appellant is the borrower. The Banker has issued Section 13 (2) notice demanding Rs. 31,75,502/-. Thereafter, the Appellant has filed Interim Application No. 678 of 2015 before the D.R.T.-III, Mumbai. 6. 5. The Appellant is the borrower. The Banker has issued Section 13 (2) notice demanding Rs. 31,75,502/-. Thereafter, the Appellant has filed Interim Application No. 678 of 2015 before the D.R.T.-III, Mumbai. 6. Before filing of S.A. before the D.R.T.-III, Mumbai, the Banker has approached to the CMM Court, Mumbai and he has filed a case No. 270/ SA/2014 and the CMM Court has allowed the application by passing an order dated 19th January, 2015 that the Assistant Registrar of Borivali Center of Courts, Mumbai is appointed as the Court Commissioner to take possession of the secured asset and report the compliance within one month from the receipt of the writ of commission. Thereafter, on 8th June, 2015 fresh warrant of commission has been issued. 7. Thereafter, because D.R.A.T. was not available the Appellant has filed writ petitions before the High Court by way of Writ Petition (L) No. 1361 and later numbered as Writ Petition No. 1172 of 2015. In the Writ Petition No. 1172 of 2015 the Hon'ble High Court has passed the order as follows : In para-3-page No. 2: "In our view, the Bank should have given an adequate opportunity to the Petitioner and in the aforesaid peculiar facts and circumstances of the case, we direct the Bank to restore the possession within forty-eight hours. Place the matter on board on 22nd June, 2015. We are informed that the Chairperson of the DRAT will be available on 18th June, 2015 onwards. The Petitioner may approach the DRAT tomorrow and day after tomorrow." In para-4-sub-para-page No. 3: "However, the Petitioner is at liberty to approach the DRAT for continuation of the stay. If the stay is not continued, further one week time is granted to the Petitioner to enable her to approach an appropriate forum." 8. In the above writ petition in para 3 it has been directed to the Banker to restore the possession within forty-eight hours. Thereafter, the Appellant before approaching to the D.R.A.T., Chennai it appears that the possession has been taken by the Banker oh 16th June, 2015 and which is not in dispute and therefore, it is the issue before this Court. 9. Thereafter, the Appellant before approaching to the D.R.A.T., Chennai it appears that the possession has been taken by the Banker oh 16th June, 2015 and which is not in dispute and therefore, it is the issue before this Court. 9. The learned Counsel for the Banker contended that since the possession has been taken by the Banker and subsequently the order has passed by the Hon'ble Supreme Court and hence he prayed that it is the duty of this Court to consider it and pass the appropriate order. 10. Considering the circumstances of which the case has arisen, the borrower has approached the D.R.T. for filing of S.A. along with interim application but the interim application has been dismissed by the D.R.T. The contention of the Banker is that the S.A. is out of the time. Therefore, considering the prima facie case the interim relief application has been dismissed by the D.R.T. 11. The learned Counsel for the Appellant contended that even though the interim application which has been dismissed by the D.R.T.-III, Mumbai, on the ground of limitation the S. A. which is pending and point of limitation is left open. The learned Counsel for the Appellant contended that the Banker filed an application under Section 14 of the said Act of 2002 for taking the possession of the property before the Chief Metropolitan Magistrate for permission to take physical possession of the secured asset on or about 11th March, 2014 and the said application has been allowed by CMM Court vide order dated 19th January, 2015 and the order copy which has been received by the Appellant on 23rd February, 2015 and immediately the Appellant has filed an S.A. in the year of 2015 before the D.R.T.-III, Mumbai, and according to the Appellant the S.A. application is in time. But this aspect has to be considered only at the time of the enquiry in the main application. In the prima facie the view taken by the D.R.T. is not correct. Hence, the above said aspect has not been considered by the D.R.T. has been seen in para 4 of the order. The view taken by the D.R.T. is prima facie not correct. 12. In the prima facie the view taken by the D.R.T. is not correct. Hence, the above said aspect has not been considered by the D.R.T. has been seen in para 4 of the order. The view taken by the D.R.T. is prima facie not correct. 12. After coming on the next aspects the D.R.T. has dismissed the Interim Application No. 678 of 2015 vide order dated 30th April, 2015 in S.A. No. 141 of 2015 and thereafter, the Appellant has filed Writ Petition (L) No. 1361 of 2015 before the High Court at Mumbai and the High Court directed both the parties to maintain status quo for the period of two weeks vide order dated 6th May, 2015. Thereafter, the same as numbered as Writ Petition No. 1172 of 2015 before the High Court and the High Court vide order dated 20th May, 2015 has extended the status quo for the period of next two weeks from the date of the order. Thereafter, as per order dated 17th June, 2015 passed by High Court in which the Banker has been directed to restore the possession to the Appellant within forty-eight hours. In between that period the CMM has passed an order dated 19th January, 2015 and the possession has been taken by the Banker. Thereafter, the High Court vide order dated 17th June, 2015 directed to the Banker to restore the possession and post the matter on 22nd June, 2015. Thereafter, the matter is reached up to Hon'ble Supreme Court which vide order dated 24th September, 2015 has directed to maintain the status quo for further period of 30 days and again the matter is heard by this Court and passed an order on 27th November, 2015. 13. This Court has opined that the order of the High Court neither confirmed nor set aside by the Hon'ble Supreme Court. Therefore, this Court has made it clear that this Court cannot ignore the judgment passed by the High Court vide order dated 17th June, 2015. Again the matter has been reached up to the Hon'ble Supreme Court and the Hon'ble Supreme Court by its order dated 15th December, 2015 directing to the D.R.A.T. to dispose off the petition on its own merits. 14. Again the matter has been reached up to the Hon'ble Supreme Court and the Hon'ble Supreme Court by its order dated 15th December, 2015 directing to the D.R.A.T. to dispose off the petition on its own merits. 14. Thereafter, today the learned Counsel for the Appellant arguing on the waiver application and this Court has to considered all this aspects to summarise the events the borrower has filed an S.A. questioning the SRFAESI proceedings and interim application has been dismissed by the D.R.T. on the ground of limitation. Writ petition has been filed and time has been extended from time to time, in the month of May-2015 two weeks time has been extended and the matter has been left. Thereafter, he has approached again to the Hon'ble High Court and the Hon'ble High Court has directed to restore the possession. Hence, this Court is of the view that even for the possession for payment of Rs. 31 lacs the party suffered from date of the application from March to till December-2015. She has taken and she has gone pillar to post. Considering this, the stay has been granted from time to time for want of D.R.A.T. being not available, since, this Court was on medical leave and the Chennai D.R.A.T. Chairperson who was in-charge of Mumbai D.R.A.T. also not passed any order due to this the Appellant left in the middle without remediless. Under such circumstances this unfortunate possession has been taken by the Respondent throwing out everybody which includes ventilator patient also. Even though in the Court proceedings the Bank would say that the due was Rs. 41 lacs, the Section 13 (2) notice has been issued only for Rs. 31 lacs. Only the interim application has been dismissed. Because of this the Appellant has been thrown out just like a dead rat using the opportunity' of non-functioning of the D.R.A.T. for months. Even though the Appellant has very much tried to protect the possession the Appellants attempt was failed before the D.R.T. and it was successful before the High Court of Bombay. In spite of the order passed by the High Court the Respondent went up to the Hon'ble Supreme Court twice to overcome the order of the Division Bench of High Court of Bombay. In spite of the order passed by the High Court the Respondent went up to the Hon'ble Supreme Court twice to overcome the order of the Division Bench of High Court of Bombay. The Respondent Bank has overpowered the Petitioner, dragged the Appellant up to the Hon'ble Supreme Court to set aside the order of the Division Bench of the Hon'ble High Court and again the matter was placed before this Court. 15. The Banker has taken so much interest to protect the Bankers action. Generally, the legal expense of the Banker will be meeted out by the borrower and in his account the Banker is debiting the amount. That is why the Banker has made and continues the nonstop litigation's even for small issues. 16. Generally, the Counsel for the Banker is entitled only for claim for legal expenses as per Legal Practitioner Rules which says that Rs. 1 lacs 1% fee and there is no question for reimbursement of entire legal expenses which was spent by the Banker and debited in the borrower account. Therefore, even the Banker is bound to claim the fees as per the Legal Practitioner Rules. 17. While seeing facts of the case, since the earlier order was neither extended nor vacated for a week. Utilizing the opportunity the borrower and its family members which include and old ventilator aged 70 years patient also was thrown out of the possession. 18. Under such circumstances, this Court is directing the Banker to restore the possession to the Appellant within two days from the receipt of the order. Otherwise, the Registrar of this Tribunal is directed to address to the Ministry of Finance as per the circular issued by them and send copy of this Court order to the person concerned to R.B.I. to take appropriate proceedings against the Bank official how the Court orders have been flouted by the Bankers and how adamant in restoring the possession to the borrower in spite of the order of the Division Bench of High Court also. In fact the interim protection granted by the Court to the borrower not vacated on merits it has been directed to approach the D.R.A.T. Tribunal and because of the non-functioning of the Tribunal the Banker has behaved in a atrocious manner and taken the possession is an example how the schedule Bankers are behaving very rudely to the borrowers and how they are misusing the SRFAESI Act is an example. 19. This Court is heavily sharing the views expressed by the High Court of Bombay and accepting the views. This Court has not ordered any amount to call upon borrower to make the payment, because the Banker is in error and their intention in taking possession only proves the mala fide intention and demonstrated before this Court it shows mala fide intention of the Respondent. The waiver application No. 593 of 2015 has been closed. If the Banker has not handed over the possession within two working days from the receipt of copy of the order, after lapse of time this Court is of the view that the person who has taken the possession also has to be prosecuted under the relevant penal provision of law if the Appellant wishes to do so and the permission also has to be granted to the Appellant. Considering such circumstances to give an opportunity to the Banker this Court is of the view that granting two working days time to re-deliver the possession and to hand over the possession of the property to the Appellant on or before 9th February, 2016. 20. In spite of the order passed by this Court the Banker has refused to re-deliver the possession of the property to the Appellant in time, the Registrar of this Tribunal directed to address to the Ministry of Finance by name cover mentioning the name of the Bank Manager an irregularity committed by him allowing the Appellant by filing the Appeal before the D.R.A.T. The Respondent Bank had taken possession of the property by throwing out of the age-old who was admittedly ventilator patient exempted as per Section 59 of the C.P.C. and in spite of order passed by the Division Bench of High Court at Bombay again prolonging the matter not by handing over the possession of the property and flouting the orders of the Court. The application is allowed. The Respondent fee is fixed as Rs. 1,000/- towards costs. 21. The application is allowed. The Respondent fee is fixed as Rs. 1,000/- towards costs. 21. Hence, in view of above I pass the following order : ORDER (a) The M.A. No. 593 of 2015 is allowed. (b) Registrar of this Tribunal directed to address to the Ministry of Finance accordingly. (c) Post on 24th February, 2016 for compliance of Bank/further order.