HAMOSONS APPARELS PVT LTD Vs. INDIAN BANK AUTHORISED OFFICER AND ASST GENERAL MANAGER ASSET RECOVERY MANAGEMENT BRANCH

JUDGEMENT

(1.) The petitioner Company has sought for issuance of a writ of certiorari to quash the records of the Debts Recovery Appellate Tribunal, Mumbai, in IN (SA) No. 40 of 2008, dated 6.11.2009, confirming the notice issued by the first respondent on 12.11.2005 under Section 13(4) of the Act.

(2.) Briefly, the facts are as follows: The petitioner company and its group concerns comprising of Hanif Brothers; H.M. Hajee Mossa; and Hamosons availed loan of Rs. 233.83 lakhs by mortgaging two Immovable properties with respondents 1 and 2 Bank and there was default in repayment and respondents Bank filed application in O.A. No. 1517 of 1998 before the Debts Recovery Tribunal-I, Chennai, for recovery of a sum of Rs. 2,51,69,849.27 from the petitioner Company and it was transferred to the Debts Recovery Tribunal-II, Chennai, and re-numbered as O.A. No. 1214 of 2001 and respondents 1 and 2 Bank filed another application in O.A. No. 1526 of 1998-before the Debts Recovery Tribunals, Chennai, for recovery of a sum of Rs. 31,31,686.75 from Hanif Brothers and it was transferred to the Debts Recovery Tribunal-II, Chennai, and re-numbered as O.A. No. 1217 of 2001 and they also filed application In O.A. No. 1525 of 1998 before the Debts Recovery Tribunal-I, Chennai, against Hamosons for recovery of a sum of Rs. 17,21,609.21 and it was transferred to the Debts Recovery Tribunal-II, Chennai, and re-numbered as O.A. No. 1371 of 2001 and respondents Bank filed a mortgage suit in O.S. No. 2578 of 1999 before the City Civil Court, Chennai, against H.M. Hajee Moosa for recovery of a sum of Rs. 4,86,134.13/- and mortgage final decree was passed on 13.11.2002 and to execute the same, an application in O.A. No. 53 of 2004 was filed on 19.2.2004 before the Debts Recovery Tribunal-II, Chennai, claiming a sum of Rs. 14,38,694.48/- with further interest as per the decree. The first respondent issued notice dated 27.1.2004 under Section 13(2) of the SARFAESI Act calling upon the petitioner Company and the other constituents of Its group concerns to pay a total sum of Rs. 7,68,63,527.90/-. The petitioner through their counsel sent representation, dated 7.7.2004. The first respondent Bank sent reply dated 26.8.2004 stating that the representation is unacceptable. The possession notice under Section 13(4) of the SARFAESI Act was Issued on 12.11.2005 for both the properties. The petitioner herein challenged the same by filing S.A. No. 20 of 2007 on the file of the Debts Recovery Tribunal-II, Chennai, and the Tribunal by Order dated 6.7.2007 dismissed the application. The petitioner herein preferred appeal under Section 18 of the SARFAESI Act before the Debts Recovery Appellate Tribunal, Chennai, with an application to condone the delay in filing the appeal in IA-112/2008 in IN (SARFAESI) 40 of 2008 and the Appellate Tribunal by Order dated 28.1.2008 allowed the application to condone the delay on condition of payment of Rs. 2,50,00,000/- by the petitioner to respondents 1 and 2 Bank in two equal instalments, the first instalment on or before 5.3.2008 and the second instalment on or before 31.3.2008. The first respondent published Tender-cum-Auction Sale Notice in the news paper on 3.4.2008 fixing the upset price of both the properties at Rs. 20,00,00,000/- and the auction was scheduled to be held on 6.5.2008. The respondents herein challenged the Order of the Appellate Tribunal passed in condone delay application by filing writ petitions in W.P. Nos. 3958 and 3959 of 2008 and this Court in its Order dated 25.4.2008 recorded the payment of Rs. 2.35 crores made by the petitioner herein to the first respondent Bank and permitted the auction sale, but, directed not to confirm the sale until further Order. The auction was conducted on 6.5.2008 and the highest bid of Rs. 20.50 crores made by the third respondent in the interse bidding was accepted and it was declared as successful bidder. This Court disposed of the writ petitions in W.P. Nos. 3958 and 3959 of 2008 along with the writ petition in W.P. No. 5172 of 2008 filed by the petitioner herein by common order dated 18.11.2008 by directing that the sale in favour of auction purchaser, namely, the third respondent herein, not be confirmed till the appeal is decided by the Appellate Tribunal on merits. The Debts Recovery Appellate Tribunal, Mumbai, (Holding additional charge of DRAT, Chennai) dismissed the appeal in IN (SA) No. 40 of 2008 with costs on 6.11.2009. The sale confirmation letter was given by the first respondent to the third respondent on 6.11.2009. The Debts Recovery Appellate Tribunal, Mumbai, on 6.11.2009, at 3.00 p.m. passed an order stating that confirmation of sale may take place on or after 16.11.2009. According to respondents 1 and 2 Bank, the order was pronounced by the Appellate Tribunal at 12.30 p.m. on 6.11.2009 and it was communicated over telephone to Asset Recovery Management Branch, Chennai, and immediately the sale was confirmed by them and the sale certificate was issued to the third respondent on 30.12.2009. The Order of the Appellate. Tribunal dismissing the appeal is under challenge In the present writ petition.

(3.) Mr. T.R. Rajagopalan, learned senior counsel appearing for the petitioner, submitted that the scheme in relation to One-Time Settlement was issued by Reserve Bank of India in exercise of its statutory power and the first respondent Bank has adopted a discriminatory attitude with One-Time Settlement proposal offered by the petitioner and Its group concerns and the D.R.A.T. has misdirected itself and the impugned order is bad In law and liable to be set aside. The learned senior counsel drew our attention to various correspondences exchanged by and between the parties to urge that the petitioner submitted proposal for One-Time Settlement on various dates and respondents Bank were not willing to respond. In support of his submission, the learned senior counsel mainly relied on the decision of the Supreme Court in Sardar Associates and Others v. Punjab Sind Bank and Others (2009) 8 SCC 257, and also the decision of this Court in MSG. Arts Crafts, rep. by its Proprietor, Mr. K.Gopal. and Another v. Assistant General Manager, State Bank of India, Sivakasi Branch and Another 2010 (2) CTC 497.