MANIK DHAR Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed assailing the impugned orders dtd. 9/9/2015 and 18/4/2016, passed by the Recovery Officer, Debts Recovery Tribunal, Gauhati in O.A. No. 12 of 2007, against the proclamation of attachment of the petitioner's property which is alleged, is yet to be registered in the name of the petitioner and that the said impugned orders, run contrary to an earlier order dtd. 10/12/2009 of the Recovery Officer itself. Being aggrieved that the impugned orders had been passed without considering the earlier order dtd. 10/12/2009, the petitioner is before this Court.

(2.) The factual aspects that are necessary for consideration of the matter is that the petitioner, had applied for credit facilities from the respondents Bank under a fund-based account namely; Term Loan and working Capital Term Loan account with varying limits against hypothecation of all movable assets. The respondents Bank sanctioned the said credit facilities in favour of the petitioner and various amounts were sanctioned on many dates, as per the set terms and conditions, against the securities stipulated in the sanction letters. The petitioner in confirmation thereof, executed various documents. To secure the loan, the guarantor of the petitioner created an equitable mortgage in favour of the respondents of a plot of land situated in Silchar and apart from the said plot, the petitioner vide letter dtd. 6/4/2004, mortgaged his flat situated at Iakatori Complex Keating Road, Shillong as part of the collateral securities towards the Loan account. It appears that after having availed of the loan, the petitioner could not re-pay the same and the respondent Bank thereafter, on such non-repayment, filed an application under Sec. 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993, before the Debt Recovery Tribunal, Gauhati, praying for issuance of recovery certificate for Rs.1,44,97,391.00 (Rupees One Crore, Forty-Four Lakhs, Ninety-Seven Thousand, Three Hundred and Ninety-One) only along with future interest, and the same was registered as O.A. No. 12 of 2007. The learned Tribunal vide Judgment and Order dtd. 29/5/2008 then issued a recovery certificate in favour of the respondent holding as follows: -

(3.) Thereafter, pursuant to the order dtd. 29/5/2008, a certificate was issued under Sec. 19 (22) of the Recovery of Debts Act and by order dtd. 24/2/2009, the Recovery Officer directed attachment of the properties of the petitioner. However, on 10/12/2009, on a report of the Recovery Inspector DRT, that the apartment situated at Iakitori Complex was yet to be registered, the said attachment was recalled to await till proper registration was completed. By another order dtd. 31/3/2011, the learned Tribunal recorded that, as there was no other property on record against which recovery proceedings could be carried out, it directed the applicant Bank to furnish property particulars belonging to the petitioner and that till submission thereof, the matter be kept in abeyance.