IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 01.09.2008
CORAM
THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
REVIEW APPLN. NO. 99 OF 2008
IN
W.P. NO. 37534 OF 2007
Canara Bank
R.S.Puram Branch, rep. by
Chief Manager/Authorised Officer
100, D.B. Road, Coimbatore 641 002. .. Applicant
- Vs -
1. The Debt Recovery Appellate Tribunal
4th Floor, Indian Bank Circle Office
55, Ethiraj Salai, Chennai 600 008.
2. The Debt Recovery Tribunal
No.1670, Cauvery Complex
Trichy Road, Ramanathapuram
Coimbatore 641 045.
3. BAPL Industries Ltd.
Bhuradia Chambers
Old No.123/1, New No.14
Bharathi Park Road No.2
Coimbatore 641 043, rep. by
Chairman R.G.Bhuradia. .. Respondents
Review Application filed to review the judgment dated 1st Aug., 2008, passed in W.P. No.37534 of 2007, as stated therein.
For Applicant : Mr. A.L.Somayaji, SC, for
Mr. L.S.Lakshmanan
ORDER
(ORDER OF THE COURT WAS MADE BY S.J.MUKHOPADHAYA, J.)
This review application has been preferred by the bank for review and recall of order dated 1st Aug., 2008, passed in W.P. No.37534 of 2007. The aforesaid writ petition was listed for hearing, but as no person appeared on behalf of the bank, after hearing the counsel for the 3rd respondent, the case was disposed of on merits in view of Full Bench decision of this Court in M/s.Lakshmi Shankar Mills (P) Ltd. & Ors. – Vs The Authorised Officer/Chief Manager, Indian Bank & Ors. (2009 (2) LW 381).
2. As the counsel for the review petitioner was not present on that day and could not be heard, we have heard the case, both on merits and facts to find out whether the order requires review and recall by issuing notice to the concerned party.
Learned senior counsel for the review petitioner referred to an order dated 30th Aug., 2006, passed by Debts Recovery Tribunal, Coimbatore (hereinafter referred to as ‘DRT’), in I.A. No.538/05 in Appeal No.1/04. Therein, a prayer was made by the 3rd respondent-borrower for interim stay, which was opposed by the petitioner-Bank. At that stage, counsel for the borrower (3rd respondent) mentioned that he would undertake to comply with the conditions, if any, imposed on the petitioners (borrowers herein) in the event of grant of stay of auction taken under the SARFAESI Act, 2002 by the respondent-Bank. Having noticed the rival contention and objection of the bank, the DRT, Coimbatore, by the said order, dated 30th Aug., 2006, passed conditional order of stay with direction to the borrowers to deposit a sum of Rs.2.6 Crores with the bank on or before 6th Sept., 2006 with further order that in the event of default, the bank is at liberty to proceed with the possession notice u/s 13 (4) of SARFAESI Act, 2002.
3. Initially an application was preferred by the borrower before the DRT for suspension of the said order for moving before the Debts Recovery Appellate Tribunal (hereinafter referred to as ‘Appellate Tribunal’), but it having been refused, the borrower moved before the Debts Recovery Appellate Tribunal, Chennai, in M.A. No.56/07. In the said case, after hearing the parties, the Appellate Tribunal, by order dated 30th May, 2007, modified the order of the DRT dated 30th Aug., 2006, by allowing the borrower to deposit a sum of Rs.2 Crores in place of Rs.2.6 Crores.
4. It was submitted by the learned senior counsel for the petitioner that the abovesaid order having passed on consent, no appeal was maintainable in view of sub-section (2) of Section 20 of the DRT Act, 1993, r/w Section 18 of the SARFAESI Act, 2002; but such submission cannot be accepted as it will be evident that the order dated 30th Aug., 2006, was not passed on the consent of the parties, but the borrower offered to comply with the conditional order, if any, passed by the Tribunal.
5. In the case of M/s.Lakshmi Shankar Mills (P) Ltd. & Ors. – Vs The Authorised Officer/Chief Manager, Indian Bank & Ors. (2009 (2) LW 381), a Full Bench of this Court held that the DRT or Appellate Tribunal, both has incidental and ancillary powers to pass any interim order subject to imposition of any reasonable condition as it deems fit and proper. That means, if any unreasonable conditional order is passed, it is always open to a party to move before the Appellate Tribunal.
In the present case, DRT passed conditional interim order by directing the borrower to deposit a sum of Rs.2.6 Crores within a specified time. After hearing the parties, if the Appellate Tribunal thought it proper that in the facts and circumstances Rs.2 Crores will be reasonable condition, which may be imposed for grant of such interim order, the same cannot be assailed on the ground that no appeal is maintainable on a consent order.
6. Having heard the learned counsel for the petitioner, as we find no error apparent on the fact of the record or even on merit, we find no ground made out to review or recall the order dated 1st Aug., 2008 and this application cannot be allowed. The review application is accordingly dismissed. But there shall be no order as to costs.
(S.J.M.J.) (V.D.P.J.)
01.09.2008
Index : Yes
Internet : Yes
GLN
To
1. The Debt Recovery Appellate Tribunal
4th Floor, Indian Bank Circle Office
55, Ethiraj Salai, Chennai 600 008.
2. The Debt Recovery Tribunal
No.1670, Cauvery Complex
Trichy Road, Ramanathapuram
Coimbatore 641 045.
S.J.MUKHOPADHAYA, J.
AND
V.DHANAPALAN, J.
GLN
R.A. NO. 99 OF 2008
01.09.2008