Court No. - 18
Case :- WRIT - C No. - 9012 of 2021 Petitioner :- M/S Wic-Chem (P) Ltd.
Respondent :- Debts Recovery Appellate Tribunal And 2 Others Counsel for Petitioner :- Sanjai Singh,Sr. Advocate Amarendra Nath Singh Counsel for Respondent :- Krishna Mohan Asthana,Ankit Tiwari
Hon'ble Ajay Bhanot,J.
Heard Sri Sanjai Singh, learned counsel for the petitioner and Sri Krishna Kant Tiwari, learned counsel for the respondent-Bank.
By means of this writ petition, the petitioner has laid a challenge to the order dated 15.02.2021 passed by the learned Debts Recovery Appellate Tribunal, Allahabad rejecting the appeal against the order dated 05.10.2012 passed by the learned Debts Recovery Tribunal, Lucknow, whereby the proceedings have been finally decided as per law.
The petitioner has also impugned the order dated 06.10.2020 passed by the learned Debts Recovery Tribunal, Allahabad, which declined the application of the petitioner to revive the Securitization Application No.289/2012, which had already been finally decided by the judgement dated 05.10.2012.
The auction has already been finalized. The possession of the disputed premises has been made over to the auction purchaser. In such circumstances, the auction purchaser is necessary party. He has not been impleaded as party. The writ petition is liable to be dismissed on the ground of non joinder of necessary parties.
Moreover, the Securitization Application filed in the year 2012 is not in the record of the writ petition. Clearly, the petitioner is not serious about prosecuting the case and simply wants to defeat his creditors.
That apart the merits of the writ petition shall now be considered. The petitioner had assailed the notice dated 04.01.2011 under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and also raised various objections in regard to the possession of the disputed premises by instituting the proceedings under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The said proceedings came to be registered as Securitization Application No.289/12 before the Debts Recovery Tribunal, Lucknow and were finally decided on 05.10.2012.
Due to clerical error or oversight, the said judgement dated 05.10.2012 rendered by the Debts Recovery Tribunal, Lucknow, was not reflected as having been disposed of/consigned to the records. Taking advantage of the aforesaid clerical oversight, the petitioner sought to revive the said Securitization Application at a highly belated by moving an application on 01.09.2020.
The order dated 06.10.2020 passed by the learned Debts Recovery Tribunal, Allahabad in Securitization Application (T) No.308/2018 (old S.A.No.298 of 2012 of DRT, Lucknow) rejected the attempt of the petitioner to revive the matter which was finally decided by the learned Debts Recovery Tribunal, Lucknow by judgement and order dated 05.10.2012. The relevant extracts of the impugned judgement of the Debts Recovery Tribunal, Allahabad are as under:
"On perusal of the order sheet of DRT, Lucknow which was uploaded by the Registry reflects that the judgement dated 05.10.2012 was passed in this S.A. (S.A. 289/2012 old number) whereby case was already decided finally holding entire action of the respondent-bank in accordance with law and Rules.
However, inadvertently, this decided case file was transferred from DRT, Lucknow to DRT, Allahabad due to change of jurisdiction. This Tribunal also inadvertently renumbered the S.A. as S.A. (T) No.308 of 2018 and intimated to the parties about the date of the case.
Since in this case no cause of action remains for adjudication, therefore, this case file closed accordingly. Pending I A S are also disposed of accordingly."
The impugned order dated 15.02.2021 passed by the Debts Recovery Appellate Tribunal, Allahabad also finds that Securitization Application No.289/12 was finally decided by the Debts Recovery Tribunal, Lucknow by order dated 05.10.2012.
It would be apposite to extract the relevant findings of the learned appellate tribunal as recorded in the impugned order dated 15.02.2021 hereunder:
"Having heard the learned counsels for the parties and on perusal of record, there is no dispute on the point that the S.A. was partly allowed vide order dated 05.10.2012, whereby the relief qua the possession notice was rejected and with regard to the sale notice was allowed in favour of the borrowers. The Bank has also proceeded further in compliance of the order dated 05.10.2012. The said order was passed after hearing the learned counsels for both the parties, therefore, this order has attained the finality. If the Bank was aggrieved by any of the findings recorded by the Tribunal below, it would have challenged the order within limitation, but no such appeal was filed at the relevant time."
A perusal of the record shows that the Securitization Application No.289 of 2012 was finally decided by the Debts Recovery Tribunal, Lucknow on 05.10.2012. The said order of the Debts Recovery Tribunal, Lucknow was not appealed. The matter had thus attained finality.
No exception can be taken to the conclusions reached by the Debts Recovery Appellate Tribunal, Allahabad and Debts Recovery Tribunal, Allahabad while passing the impugned order dated 15.02.2021 and the order dated 06.10.2020 respectively. There is no infirmity in the orders of both the tribunals below.
There is one more fact which deserves mentioning. The petitioner had assailed the notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and various aspects of the securitization proceedings by instituting a writ petition before this Court, registered as Writ-C No.8257 of 2012 (Wic- Chem (P) Ltd. and another Vs. The Reserve Bank of India and others). The writ petition was decided by the judgement entered by this Court on 23.04.2012. The relevant extracts of the judgement are as under:
"10. A close examination of the dates and events, which led to rejection of the OTS proposal by the bank, would show that the petitioner was not willing to increase the amount calculated by it at Rs. 106 lacs as the OTS amount in February, 2011. In the last letter of the Bank sent with regard to the OTS proposal dated 11.12.2010, the bank expressed its willingness to consider the offer of Rs. 114 lacs, so that an appropriate decision be taken and advised him to deposit 25% of OTS proposal, as down payment in no lien account, which is required for considering OTS proposal as per bank guidelines. The petitioner did not comply with this letter dated 11.12.2010. The petitioner's conduct clearly shows that it was not interested in making any payment and only wanted to drag the proceedings.
11. We do not find that the bank had not complied with the directions of the Reserve Bank of India, in framing a reasonable non-discriminatory policy for OTS for non- performing accounts under the Micro and Small Enterprises Sector. The bank worked out a policy on 24.9.2009 vide Circular No. 213-2009-BC-REC-09 for working out detailed procedure for coverage of accounts; asset classifications; method of payment; future interest, and sanctioning authority for advances upto Rs. 50 lacs. For the advances of more than Rs. 50 lacs, the bank decided to continue with the existing policy, which was in vogue at that time following the matrix chart.
12. We do not find any substance in the argument of learned counsel appearing for the petitioner, that the bank was unreasonable, arbitrary and unwilling to settle the OTS proposal. The admitted facts culled out from the pleadings would show that the bank was more than willing and had actually entered into long and active negotiations with the petitioner. The bank insisted upon OTS amount of Rs. 114 lacs on 11.12.2010 and requested the petitioner to deposit 25% in no lien account. The bank made an invitation to offer within its policy considering various aspects, including the asset classification and recoverability of the loan. The difference of six lacs taking into account the liability was not such, which can be said so arbitrary, unreasonable and discriminatory, that the Court may record a finding against the bank, to quash the notice under Section 13 (2) of the SARFAESI Act, 2002.
13. In Sardar Associates (supra), the Punjab & Sind Bank had turned down the OTS proposal of the borrower. It was held by the Supreme Court, that the Board of Directors of the bank could not have deviated from the guidelines on a minor matter, which did not accept the broad aspects of policy decision and had adopted a discriminatory approach. The Supreme Court held in para-42 of the judgment that if in terms of the guidelines issued by the Reserve Bank of India, a right is created in a borrower, there is no reason as to why a writ of mandamus could not be issued.
14. In the present case, we do not find that guidelines issued by the Syndicate Bank on 24.9.2009, for the borrowers, where the original advance limit is more than Rs. 50 lacs, created any right in favour of the petitioner for any amount for one time settlement, nor the petitioner has demonstrated any discrimination exercised by the bank with any other borrowers.
15. The petitioner has made an application under the Right to Information Act, 2005 and has travelled upto Central Information Commissioner to be given the note sheet of the negotiation. We are of the view, that the note sheet of the negotiation in a process to arrive at a decision, to enter into a contract for OTS, will not have any evidentiary value to record any findings for or against any party, unless there is any such pleading or claim of any promise, or of any malafide intentions. The petitioner has not placed on record any such material, which may satisfy us that the bank had agreed to Rs.
106 lacs as the OTS proposal and had gone back on its promise, in asking for payment of Rs. 114 lacs. As observed above, taking into account the total liability, the difference in the OTS amount proposed by the bank and offered by the petitioner was not such, which can be said to be arbitrary or may have discriminated the petitioner to interfere in the matter.
16. The writ petition is dismissed."
In the wake of preceding discussions, no cause for interference is made out by exercise of discretionary jurisdiction in favour of the petitioner.
The writ petition is liable to be dismissed and is dismissed.
Order Date :- 12.8.2021 Ashish Tripathi