RAMLAL GAUD Vs. UNION OF INDIA

JUDGEMENT

(1.) WRIT Petition No. 6228/02 has been filed by the petitioners calling in question legality of the order dated 13-9-2002 passed by the Recovery Officer, debts Recovery Tribunal, Jabalpur by which the objection against the attachment and auction sale has been dismissed as withdrawn without there being any consent of the Counsel or the objector. W. P. No. 7290/02 has been filed by M. P. High Court Bar Association levelling serious charges of improper judicial behaviour by Shri C. K. Solanki, the then Presiding Officer, Debts recovery Tribunal, Jabalpur.

(2.) THE case of petitioner in W. P. No. 6228/02 is that Shri C. K. Solanki was the then Presiding Officer, DRT, Jabalpur. His son Rishi Kumar Solanki respondent No. 4 was the auction purchaser in the auction which was held on 9th september, 2002by Recovery Officer, DRT. He was the only auction bidder and auction was finalized in his favour. There is allegation made of manipulation of order-sheet dated 13-9-2002. It is submitted that Counsel whose consent has been mentioned to withdraw the objection did not appear on the date on which his consent has been mentioned, another Counsel Shri Alok Pathak stood engaged who had filed the objection, not the previous Counsel Shri Sanjeev shukla. The order-sheet had not been dictated till 16-9-2002. The Counsel for objector Shri Alok Pathak was told to appear on the next date, i. e. , 16-11-2002 for hearing on objection and the ante-dated order was passed dictated by Shri c. K. Solanki, as per version of respondent No. 3, Recovery Officer mentioned in his return in Paras 4 and 5. High Court Bar Association has also filed Writ petition No. 7290/2002 praying for restraining respondent No. 3 from discharging his judicial function as Presiding Officer, DRT, Jabalpur, since he has retired. This Court passed interim stay. The High Court Bar Association also intervened in W. P. No. 6228/02 and on 19-12-2002, considering that contempt proceedings were initiated against the High Court Bar Association, in that regard notice was issued by Registrar of DRT considering the serious nature of allegations levelled against respondent No. 2 Shri C. K. Solanki. Considering rule 17 contained in IInd Schedule of Income Tax Act read with Section 29 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "act of 1993"), this Court observed that Rishi Kumar solanki, son of Shri C. K. Solanki who was Presiding Officer could not have participated in the auction. Shri Solanki stood retired in January, 2003. When illegality committed by Shri Solanki was brought to the notice of this Court. Thereafter, the aforesaid notice of contempt was issued by Registrar, DRT, and allegedly, bargain was made to withdraw the notice of contempt in case petition was withdrawn. It was observed by this Court that respondent No. 2 may be well advised and expected not to decide any case in absentia of lawyers and proceed ex parte till next date considering the serious nature of allegations levelled and strained relationship with Bar.

(3.) IN W. P. No. 6228/2002, it is averred that petitioner Ramlal Gaud is the owner of property House No. 103, Shri Nagar Extension, Indore. First floor of the house bears No. 103-A. It is owned by Pradeep Kumar Gaud, son of petitioner No. 1. Petitioner No. 2 Pradeep Kumar Gaud mortgaged his portion of the house with the respondent/bank as a guarantor. The borrower failed to repay the loan consequently Bank of Baroda had filed a suit against the borrower M/s. Corro Pack Ltd. and the guarantor Pradeep Kumar. The suit was decreed by the Tribunal, it was directed to recover the amount by the sale of the mortgaged property of the guarantor. Bank had filed an Execution Application ta. Ex. Case No. 30 of 2002 before the Recovery Officer, DRT. Instead of restricting attachment of the mortgaged property, attachment of whole house bearing Nos. 103 and 103-A Shrinagar Extension, Indore was ordered including the property of petitioner No. 1 which was never mortgaged with the Bank. An objection was filed on 30-8-2002 on the ground that property was never mortgaged with the Bank, therefore, order of attachment as well as notice of auction are void ab initio. On 9-9-2002, Recovery Officer told the Counsel for objector that looking to the nature of objection, he has orally instructed the recovery Inspector not to proceed with the auction sale and with that understanding the case was adjourned for reply by the respondent Bank and for argument on objection and stay. It is further averred that on 13-9-2002 Counsel for objector Shri Alok Pathak appeared before the Recovery Officer twice during Court hours, but neither the bank filed reply nor the arguments on objection were heard nor the order-sheet was written by the Recovery Officer and he asked the Counsel for objector to come on any other date. 14th and 15th september were the holidays. Shri Alok Pathak, Advocate again appeared on 16-9-2002 to note the order-sheet, till that date the order-sheet was neither written nor signed by the Recovery Officer. The Counsel was informed that case has been simply adjourned for 16-11-2002, he was asked to appear on 16-11-2002. Petitioner on 4-10-02 learnt from the Bank employees about the sale of the house on 9-9-2002, therefore, he requested his Counsel to obtain the certified copy of the order dated 16-9-2002. On receiving the certified copy of the order drawn on 13-9-2002, objector was stunned to find that his objection has been stated to be withdrawn by Shri Sanjeev Shukla, Advocate who did not appear before the Recovery Officer either on 13-9-2002 or 16-9-2002. It is further averred that on 17-10-02 Counsel for objector Shri Alok Pathak with a delegation of five lawyers named in the petition appeared before the Recovery officer to clarify the situation and apprised him of correct facts. Recovery officer stated that some error might have been committed, he advised Counsel appearing on behalf of objector to move an application for recall of order dated 13-9-2002. On 21-10-2002 application was filed for recalling the order by mentioning all the facts and circumstances in detail. The Counsel for the objector was told to appear for hearing on the application on 23-10-2002, but filing section intimated the Counsel that no such application for recalling of the order was traceable. Petitioners learnt from own sources and on enquiry it was confirmed by the Recovery Officer that the above House No. 103 had been purchased by respondent No. 4 Rishi Kumar Solanki who is son of respondent no. 2 C. K. Solanki, Presiding Officer, DRT, Jabalpur. It is further averred that so called auction purchaser has no source of income. He is solely dependent upon his father. It was colourable action of attachment, auction, sale, etc. at the instance of Presiding Officer, DRT, Jabalpur. No auction took place on the spot on 9-9-2002, the auction sale proceedings are fictitious, it was not proceeded by any proclamation of sale. Consequently, competitive bidders did not come forward. Property worth Rs. 8,00,000/- was sold for a paltry sum of Rs. 3,50,000/-because the real purchaser was the Presiding Officer, DRT under the guise of his son. The sale proclamation notice (P-4) prohibits officers or other persons having any duty to perform in connection with sale, either directly or indirectly not to bid form, acquire or attempt to acquire any interest in the property. The action is illegal and malafide, hence the petition.