MARIAMMA VARGHESE Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has approached this Court challenging Ext.P12 order of the Tribunal on I.A.Nos.2417/2022 and 3260/2022 in S.A.No.475/2022.

(2.) It is the case of the petitioner that the Tribunal has not properly appreciated the contentions taken by the petitioner before the Tribunal and has mechanically rejected the stay application by directing a payment of a sum of Rs.53.00 Lakh, as a condition for stay of further proceedings. It is submitted that the amount claimed by the Bank has not been properly adjudicated and the amount is to be adjudicated in the original application filed by the Bank under the provisions of the Recovery of Debts and Bankruptcy Act, 1993. It is submitted that the Tribunal has found that there is no prima facie illegality in the proceedings initiated under Sec. 14 of the SARFAESI Act, in a mechanical manner. It is submitted that out of the two items of property, which have been mortgaged, one item of property had already been taken possession of and the value that may be released by the sale of that property will be sufficient to clear the entire liability with the Bank. It is submitted that Interlocutory Applications filed for conducting valuation or for producing the valuation obtained by the Bank in respect of the property which has already been taken possession of has not been considered by the Tribunal. It is submitted that going by the Judgment of the Supreme Court in Mardia Chemicals v. Union of India; 2004(4) SCC 311, the proceedings under Sec. 17 of the SARFAESI Act are in the nature of original proceedings. It is also submitted that the Supreme Court has set aside the provisions of the SARFAESI Act to the extent it required a pre-deposit to be made as a condition for maintaining an application under Sec. 17 of the SARFAESI Act. Therefore, it is submitted, the Tribunal could not have imposed any condition of deposit for the grant of stay.

(3.) Adv. Tom K. Thomas, the learned counsel appearing for the respondent Bank would submit that the contentions taken by the petitioner are without any merit whatsoever. It is submitted that the Tribunal has considered the contentions taken in the Interlocutory Applications and has found that there was no prima facie illegality in the proceedings adopted by the Bank under Sec. 14 of the SARFAESI Act. It is submitted that the Supreme Court in Mardia Chemicals (supra), has concluded that it will be open to the Tribunal to grant stay/interim order subject to any condition and therefore it is not open to the petitioner to contend that the Tribunal should not have imposed any condition. It is submitted that the Supreme Court only frowned upon the requirement of the pre-deposit as a condition for maintaining an application under Sec. 17 of the SARFAESI Act and that by itself does not mean that the Tribunal could not impose any condition for the grant of stay. It is submitted that the contention that the amount has not been adjudicated, cannot be accepted, as the principal amount itself is Rs.1.87 Crores and the petitioner has only been required to make payment of a sum of Rs.53.00 Lakh as a condition for stay. It is submitted that even assuming without conceding that there is any merit in the dispute regarding the amounts now claimed by the Bank, the petitioner cannot have a dispute regarding the principal amount. It is submitted that the condition imposed by the Tribunal is less than half of the principal amount (as claimed in the original application filed in the year 2018) as due from the petitioner. It is submitted that the Tribunal has neither failed to exercise any jurisdiction vested in it nor has it exceeded any jurisdiction vested in it. It is submitted that the petitioner has an effective alternative remedy of appeal under the SARFAESI Act and therefore the writ petition is clearly not maintainable.