(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) This Appeal is filed by the appellant Bank against the order dated 03rd February, 2012 of the learned Single Judge in Company Application No.03 of 2001. The appellant herein took out Judges Summons for various directions. In the said Judges Summons, it is prayed that the Court may direct the Official Liquidator to release and handover actual and physical possession of the office premises situated at 12, First Floor, Janpath Complex, Ashram Road, Ahmedabad to the Court Receiver appointed by the Recovery Officer of Debts Recovery Tribunal, Ahmedaabd in R.P. No.2372. For the sale of said property by the Recovery Officer under the RDB Act towards certain dues of the appellant. The learned Single Judge found that such prayer should be made by the Recovery Officer and not by the appellant Bank. The learned Single Judge also found that in case the Recovery Officer fails to discharge his duties or he is not taking any action and if the Judgment Creditor is required to take any action, such Creditor can take action against the Recovery Officer asking him to perform is statutory duty. The grievance of the appellant is that before the Recovery Officer the Official Liquidator is not remaining present and that is why the appellant was required to move the Judges Summons before the learned Single Judge.
Today learned counsel Mr.Yadav for Official Liquidator is present before the Court. Mr.Yadav states that Official Liquidator has already filed Report and as per the same, the Official Liquidator has no objection to handover the possession to the appellant itself. It is further submitted that thereafter the Recovery Officer may put the property in auction in the presence of Official Liquidator.
On behalf of appellant reliance has been made to the decision of the Apex Court in case of Rajasthan State Financial Corporation reported in (2005) 8 SCC 190. In the said judgment the Apex Court has held that Debts Recovery Tribunal acting under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 would be entitled to order the same and to sell the properties of the debtor, even if a company in liquidation, through its Recovery Officer but only after notice to the Official Liquidator or the liquidator appointed by the Company Court and after hearing him.
Considering the facts of the case, we are of the opinion that instead of directing the Official Liquidator to handover the possession to the appellant directly, it would be just and proper to direct the Official Liquidator to handover the possession of the property in question to the Recovery Officer under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The Recovery Officer thereafter may proceed for auction of the property in accordance with law and after hearing objections, if any, in this behalf. However, the Recovery Officer is directed to give notice to the Official Liquidator of such auction to be conducted and Mr.Yadav, learned counsel for the Official Liquidator, assures that the Official Liquidator will remain present in the further proceedings before the Debts Recovery Tribunal as well as before the Recovery Officer. Further proceedings shall be subject to order, if any, passed by the Debts Recovery Tribunal in this matter. It is clarified that statement of learned counsel Mr.Yadav is recorded that proper care will be taken on behalf of the Official Liquidator before the Debts Recovery Tribunal as well as Recovery Officer in future as it found in present case that nobody had appeared on behalf of the Official Liquidator before the Debts Recovery Tribunal as well as the Recovery Officer. It is further clarified that in a given case even if the Recovery Officer is not taking any steps, concerned Creditor can certainly move the Court and it cannot be said that it has no locus-standi.
Subject to above directions, present Appeal stands disposed of.
In view of order passed in O.J. Appeal No.29 of 2012, Civil Application No.163 of 2012 stands disposed of.
(P.B.
Majmudar, J) (Mohinder Pal, J) Anup Top