(Per : HONOURABLE MR.JUSTICE K.M.THAKER) The applicants have taken out present application seeking below mentioned relief:-
"11A Recall the order dated 20th October, 2010 passed in Special Civil Application no. 8914 of 2009 and pass appropriate order deleting the sentence "However, one fact appears to have not been denied is that the petitioner was a tenant of the property which was auction sold" from paragraph 9 of the said order and thereby modify the said order only to that extent;"
1.1 The applicants are original respondent Nos.4 and 5 in the writ petition being Special Civil Application No.8914 of 2009.
2. After hearing the parties concerned in Special Civil Application No. 8914 of 2009 with Civil Application No.11229 of 2009, order dated 20.10.2010 was passed. The said writ petition and application came to be disposed of by the said order dated 20.10.2010. Para-9 of the said order reads thus:-
"9. In the present case under Article 226, it cannot be determined whether the Bank or the Tribunal was party-respondent in the Suit or not, by the time order was passed. However, one fact appears to have not been denied is that the petitioner was a tenant of the property which was auction sold. From the impugned Order dated 23rd July 2009 passed by the Recovery Officer, it also appears that the aforesaid fact was brought to the notice of the Recovery Officer. In such a situation, whether the tenant ought to have been removed from the property while giving possession in favour of the subsequent purchase [auction purchaser herein] ought to have been decided by the Tribunal. As such issue is required to be determined and there is remedy of appeal u/s. 30 of the DRT Act, 1993 against an order passed by the Recovery Officer before the DRT is available, we are of the view that the petitioner should prefer an appeal u/s. 30 of the said Act. Taking into consideration the fact that the petitioner was contesting the matter before this Court since 25th August 2006 ie., immediately after the Order dated 27th July 2009 was passed, we allow the petitioner to file such an appeal u/s. 30 of the Act within fifteen days."
2.1 It is in connection with the observations made in the said para-9 that the respondent Nos.4 and 5 in the said writ petition have taken out present application seeking above mentioned relief.
3. Mr. Bhatt, learned counsel, has appeared for the applicants. Mr. Hriday Buch, learned advocate, has appeared for the opponent No.1 [writ petitioner] and Ms. Lodha, learned advocate, has appeared for the respondent - Bank. We have heard learned counsel for the contesting parties and have perused the record.
4. The writ petitioner, i.e. opponent No.1 herein, has filed affidavit opposing the application.
5. Mr. Bhatt, learned counsel for the applicants, has submitted that the observations in para-9 of the order to the effect that, "However, one fact appears to have not been denied is that the petitioner was a tenant of the property which was auction sold.", are not in consonance with the averments and statement on record of Special Civil Application No.8914 of 2009. Learned counsel for the applicants relied on the affidavit and other documents obtaining on record of the writ petition, i.e. Special Civil Application No.8914 of 2009.
5.1 The applicants have, thus, come forward with a plea that the said observations in para-9 appear to be an error, inasmuch as the claim that the petitioner was tenant of the property which came to be auction sold, was in dispute and the said claim was denied.
6. Per contra, Mr. Buch, learned counsel for the opponent No.1, has vehemently denied the said submissions by learned counsel for the applicants and submitted that the said observations are findings by the Court after hearing the parties and after examining the record and that therefore, the request for deleting the said findings may not be accepted. Mr. Buch submitted that the said findings are recorded by the Court after considering the decision on which the petitioner, i.e. opponent No.1 herein, relied at the time of hearing, viz. the decision in case of Paul Brothers (Trailoring Division) & Ors. v. Ashim Kumar Mondal & Ors. [(1990) 3 SCC 726].
7. Ms. Lodha, learned counsel for the respondent - Bank, also supported the plea made by the learned counsel for the applicants.
8. On perusal of the record and the order dated 20.10.2010, it appears that unnecessary controversy is raised by the applicants inasmuch as while making the said order dated 20.10.2010, the Court has taken care to clarify that the observations and findings recorded in the order have been made for the purpose of passing the order and relegating the petitioner to the Debts Recovery Tribunal.
It is needless to again clarify that the observations and findings in the said order are tentative and are made for the said limited purpose. This aspect becomes more clear from the further observations made by the Court in para-10 of the said order, which reads thus:-
"10. If such an appeal u/s.30 of the Act, alongwith a petition for interim relief, is preferred within 15 days, the Tribunal will decide the case on merit, taking into consideration the relevant facts, provision of law and decisions of the Hon'ble Supreme Court, as referred to above and the submissions as may be made by the parties. It will also be open to D.R.T to pass appropriate interim order and in case of prima facie case, may restore possession in favour of tenant, if so required. The interim order passed by this Court shall continue for another three weeks. The writ petition stands disposed of with the aforesaid observations. No costs. Direct service is permitted."
8.1 Having regard to the above mentioned aspects and considering the observations in para-10 of the order dated 20.10.2010, we are of the view that present application can be disposed of with the clarification that the Debts Recovery Tribunal shall decide the case before it, on its own merits after taking into consideration the material and evidence available on record of the case, relevant facts, applicable provisions of law and the decision by the Apex Court of which reference is made in the said order and other decisions which may be relied on by the parties.
We are of the view that any other clarification or order, except what is stated above, is not required in present application.
With the aforesaid observations and clarifications, present application stands disposed of.
(K.M.Thaker, J.) (Ms.
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