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Rajasthan High Court · body

2018 DIGILAW 2064 (RAJ)

Arjun Gangani v. Debt Recovery Tribunal

2018-10-06

SANDEEP MEHTA

body2018
JUDGMENT : SANDEEP MEHTA, J. 1. By way of this writ petition, the petitioner Arjun Gangani has approached this Court for assailing the order dated 16.04.2014 passed by Debt Rent Tribunal, Jaipur in Securitization Application (SA) No. 85/2013 and also the orders dated 29.05.2015 and 18.02.2016 passed by Debt Recovery Appellate Tribunal, Delhi. The petitioner seeks further a direction that the possession of the house in question (secured assets) should be handed over to the Dena Bank who in turn be directed to sell the same through public auction and refund the excess amount to the petitioner. 2. Brief facts of the case are that the petitioner's son Shri Amit Gangani took Cash Credit Facility from the respondent Dena Bank by keeping the petitioner's residential premises as mortgage with the Bank by way of security. The petitioner who stood as a guarantor for his son Amit. However, he appears to have executed an agreement for sale of the secured assets in favour of one Suresh Kumawat for a consideration of Rs. 1.30 crore/-. It is claimed that before entering into the agreement the purchaser was made aware of the fact that the house was mortgaged with the Bank. The petitioner claims that he did not receive any consideration towards the agreement which was allegedly signed under the pressure of one Kahaiyalal Kumawat who gave assurance to the petitioner that the purchaser would settle the loan account and the excess amount would be paid to the petitioner. The sale deed was registered. The petitioner claims that since he was in a dire need of money, he agreed to sell the house under false assurance of Shri Kanhaiyalal Kumawat. It is further averred that the purchasers/respondent Nos. 2 to 5 filed a suit for permanent injunction against the petitioner and the Dena Bank on 30.05.2013. The respondent Dena Bank took symbolic possession of the house from the petitioner because the loan was not repaid. The petitioner further claims that the Dena Bank took physical possession of the property from the petitioner on 09.09.2013. 3. The respondents purchasers filed an application under Section 17(1) of the SARFAESI Act in the DRT, Jaipur claiming that they were ready to clear off the dues towards the loan account and that the possession of the house be restored to them with the chain of original title documents. 4. 3. The respondents purchasers filed an application under Section 17(1) of the SARFAESI Act in the DRT, Jaipur claiming that they were ready to clear off the dues towards the loan account and that the possession of the house be restored to them with the chain of original title documents. 4. The Tribunal by order dated 12.03.2014 directed these applicants (respondents Nos. 2 to 5) to pay the entire dues of the bank to the tune of Rs. 51,87,955.88 with interest at contractual rate. 5. The Bank filed a compliance report apprising the DRT that the applicants (respondents Nos. 2 to 5) had deposited the due amount to the tune of Rs. 63,57,153/- and also verified that the outstanding of the loan account of M/s Computer ware Systems & Consultants Udaipur was cleared off. The petitioner being the guarantor in the loan appeared in the SARFAESI proceedings and filed an application under section 10 of CPC. The said application was dismissed by the DRT by order dated 16.04.2014. 6. Being aggrieved of the said order, the petitioner filed an appeal before the Debt Recovery Appellate Tribunal, Delhi raising a grievance that the DRT was not justified in handing over possession of the secured assets to the respondents/purchasers as the sale deed executed in their favour was under challenge in a civil court. 7. The DRAT initially passed an order dated 24.11.2014 restraining the Bank from handing over the title deeds and possession of the mortgaged property to the respondents purchasers. Petitioner had also filed a waiver application in the appeal seeking exemption from filing 50% of the due amount for maintaining the appeal. 8. On 15.04.2015, the DRAT passed a waiver order permitting the petitioner to make payment of 25% of the due amount so as to maintain the appeal. 9. The petitioner allegedly wrote a letter dated 04.05.2015 to the Manager of the Bank requesting it to provide details of the amount and the account number in which 25% of the dues were supposed to be deposited. 10. The Bank, in turn replied that it had not received any court order to accept amount on account of Computer ware Systems and Consultants Udaipur. 10. The Bank, in turn replied that it had not received any court order to accept amount on account of Computer ware Systems and Consultants Udaipur. The petitioner claims to have forwarded the order dated 15.05.2015 passed by the DRAT to the Bank but still the Bank allegedly failed to provide the requisite account details or the precise outstanding amount to the petitioner. The DRAT took up the matter on 29.05.2015 and as the Counsel standing as proxy on behalf of the Advocate engaged by the petitioner failed to apprise the Tribunal regarding the pre-deposit of 25%, the appeal was dismissed on 29.05.2015 giving liberty to the petitioner to seek revival thereof in case requisite 25% of the due amount had been repaid. 11. A review application was filed on behalf of the petitioner before the DRAT, Delhi stating that the appellant was not aware as to how much amount is required to be deposited. However, the DRAT dismissed the said review application by order dated 18.02.2016. These orders are under challenge in this writ petition filed under Article 226 of the Constitution of India. 12. Learned Counsel Shri Sajjan Singh vehemently urged that the Bank was under an obligation to provide the exact details of the due amount to the petitioner so that 25% thereof could be deposited to satisfy the condition of the pre-deposit for maintaining the appeal at the DRAT. The petitioner repeatedly requested the bank to provide the details of the exact amount and the account number so as to satisfy the condition of the pre-deposit. However, the bank intentionally avoided to do so. Thus, the petitioner was prevented from depositing the mandatory 25% amount in terms of the order dated 15.04.2015 resulting into dismissal of his appeal. He thus, urges that a direction may be given to the Bank to provide such details to the petitioner and to the DRAT to restore the appeal and to hear the same on merits. 13. He further prayed that so long as the civil suit filed by the petitioner seeking cancellation of the sale deed is pending, the bank be restrained from handing over possession of the property and chain of title documents to the respondents. 14. I have given my thoughtful consideration to the arguments advanced at by bar by Mr. Sajjan Singh and have gone through the material available on record. 15. 14. I have given my thoughtful consideration to the arguments advanced at by bar by Mr. Sajjan Singh and have gone through the material available on record. 15. I am of the firm opinion that the entire endeavour of the petitioner has been to somehow or the other frustrate the Securitization proceedings and so also to wriggle out the sale deed. The plea advanced by Counsel for the petitioner Shri Sajjan Singh that the petitioner was prevented from depositing 25% of the due amount because the Bank did not provide him the requisite information is absolutely far-fetched and concocted. If at all the petitioner was not having the requisite information i.e., account number & amount, nothing prevented him from filing a suitable application to the DRAT who have indisputably could have directed the Bank to provide the requisite information at the earliest. Furthermore, the due amount was already reflected in the order of the DRAT dated 15.04.2015 and no expertise are required to calculate 25% thereof. Had the petitioner's intention been bona fide, he could have prepared a draft of 25% of the amount mentioned in the order dated 15.04.2015 and deposited the same in the Tribunal who could have handed it over to the respondent Bank. Manifestly, the petitioner was just playing hide and seek with the Tribunal and the Bank and never intended to pay the pre-deposit for maintaining appeal. 16. In this background, this Court is not inclined to exercise its extraordinary writ jurisdiction in favour of the petitioner who has not approached the Court with clean hands. Thus, the writ petition as well as the stay application are dismissed summarily as being frivolous and devoid of merit.