ORDER
K. Gnanaprakasam, J. (Chairperson)
1. This appeal is directed as against the order dated 16.12.2005 passed by the DRT, Hyderabad, in pending SA-156/2005.
Both the learned Advocates for the appellants and the respondent are heard.
2. As against the measures taken by the appellants under Section 13(4) of the Securitisation Act, the respondent preferred an application before the DRT, Hyderabad, which is pending in SA-156/2005. During course of the argument, from the appeal papers, it is revealed that the appellants have issued notice under Section 13(2) of the Securitisation Act, in respect of two properties. One is situated at Varadapalayam and the other at Thirumudivakkam, Chennai. But however, at the time of taking measures under Section 13(4), the appellants have issued first possession notice only in respect of the property at Varadapalayam on 15.10.2005, and subsequently issued another possession notice in respect of the property situated outskirts of Chennai also, on 17.10.2005. As against the first possession notice dated 15.10.2005, the respondent appealed in SA 156/2005 before the DRT, Hyderabad, which is pending. As against the second possession notice, the respondent filed an application to stay all the proceedings in respect of the Chennai property and the DRT by its order dated 9.12.2005 passed order as under:
The learned Counsel for the respondent Bank states that the Bank will not confirm the sale that will be held on 12.12.2005 with respect to a secured interest at Chennai.
In view of the same, the respondent Bank shall go on with the auction but shall not confirm the sale till 16.12.2005.
3. The matter came up for hearing on 16.12.2005, and on that day evidence affidavit of the applicant (Borrower) was filed and Exhibits were marked and for the respondent’s evidence affidavit, time was given up to 31.1.2006. As there was no bidder in the auction held on 12.12.2005, the borrower prayed for the extension of the interim order dated 9.12.2005 until further orders and the same was opposed by the appellant Banks. After hearing the parties, the learned Presiding Officer, of DRT, Hyderabad, was of the view that by taking into consideration of the fact that the conduct of the auction was not stayed and only the confirmation of the sale alone was sought to be stayed pending disposal of the S.A., extended the interim order dated 9.12.2005 until further orders and posted the Section A. on 31.1.2006 for respondents’ evidence affidavit and for further proceedings. Aggrieved by the order of extension of stay, the Banks have preferred this appeal.
4. The learned Advocate for the appellants has submitted that the interim stay granted by the DRT, Hyderabad in SA-156/2005 is in respect of the property situated in Chennai, but whereas SA-156/2005 was filed in respect of the measures taken in respect of the property situated at Varadapalayam, which is within the jurisdiction of the DRT, Hyderabad, and thereby pointed out that the DRT has no jurisdiction to pass such an order. It is further submitted that as far as SA-156/2005 is concerned, the respondent is entitled to prosecute the same after completion of the proceedings and the respondent cannot pray for stay of the proceeding in respect of the property situated at Chennai, as no appeal or application was filed by the respondent as against the measures taken in respect of the property situated at Chennai. It is, therefore, submitted that the appellants may be permitted to confirm the sale and realise the amount and appropriate the same in respect of the amount due by the respondent to the appellants.
5. The learned Advocate for the respondent would contend that the appellants issued a notice under Section 13(2) of the Securitisation Act, which is a comprehensive one comprising of both the properties situated at Varadapalayam as well as at Chennai, but at the time of issuing possession notice, the appellants had chosen to split up the notice in respect of the property at Varadapalayam. As against the same, the respondent has preferred SA-156/2005 and the same is pending. Subsequently, the appellants have issued possession notice in respect of the property at Chennai also, and only in the said circumstances, the appellants have filed an application, in pending S.A. to stay the proceedings in respect of the Chennai property. It is submitted that the amount claimed by the appellants had arisen in and out of one and the same transaction and, therefore, the respondent is entitled to maintain its application for grant of stay in the pending appeal even though no separate appeal has been filed as against the measures taken in respect of the Chennai property. It is further submitted that if the appellants had not taken two separate action under Section 13(4) in respect of both the properties, the respondent would not have been driven to the necessity of filing such an IA. If the respondent has to challenge the measures taken under Section 13(4) by the appellants in respect of the property at Chennai, he had to pay the necessary Court fee for the same separately, and the same is not proper for the simple reason that just because the appellants had split up the measures as contemplated under Section 13(4) of the Act, the respondent cannot be penalised to pay two Court fees by filing separate appeals as against the measures taken by the appellants.
6. After hearing the learned Advocates for the appellants and the respondent and after perusing the records, it appears to me that there is some anomaly in the procedure and for that matter, though the respondent is a borrower, cannot be driven lo the critical position of paying the Court fee twice, when he wanted to challenge the measures taken under Section 13(4) by taking separate proceedings. But however, the respondent also cannot challenge in respect of the second possession notice, in the appeal, which he was already filed in respect of the earlier measures taken under Section 13(4) in respect of the Varadapalayam property. Had the appellant Banks had taken measures in respect of both the properties in single possession notice, the respondent would have resisted the same in common. Now he is driven to the necessity of challenging the measures taken by the appellants on two different occasions. But the Securitisation Act does not prohibit the appellant Banks from splitting up the securities and bring them for sale or for any other purpose. As such, we cannot also say that the auction measures taken by the appellant Banks is against law or improper. But at the same time, the right of the borrower should also be safe-guarded as he is the aggrieved party against the measures taken by the appellants Banks.
7. In this case, interim stay was granted by the DRT only not to confirm the sale that was scheduled to be held on 12.12.2005, and the sale was not stayed. That only on the same ground, further extension was granted by the DRT by its order dated 16.12.2005. Now it is given to understand that though the sale was not held on 12.12.2005, subsequently the sale of Chennai property was held on 15.2.2006 and the auction purchaser has also deposited 25% of the sale amount. It is also not the case of the respondent that they deny the entire liability due to the appellant Bank. Of course, the respondent denied the extent of the liability and other aspects of the claim made by the appellants also. That in the said circumstances, no fruitful result would be yielded in not confirming the sale, as third party interest has already been created as the Chennai property has already been sold. By confirmation of the sale and by issuance of the sale certificate, the right of the respondent will not be affected or prejudiced in prosecuting SA-156/2005. Hence the appellant Banks are permitted to confirm the sale and also issue the sale certificate in favour of the auction purchaser and do all further acts in pursuance of the sale in respect of the Chennai property alone.
8. The respondent is at liberty to prosecute the SA-156/2005 on all grounds taken in the S.A., and the DRT, Hyderabad, shall hear the parties and pass orders in accordance with law without being influenced by any of the observations made by this Tribunal in this order.
9. The appeal is disposed of accordingly.