DAYANAND MEDICAL COLLEGE AND HOSPITAL MANAGING SOCIETY, LUDHIANA Vs. DEBTS RECOVERY APPELLATE TRIBUNAL AND OTHERS

JUDGEMENT

(1.) By way of the instant writ petition, the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the order dated June 12, 2015 (Annexure P-6) passed by the learned Debts Recovery Tribunal-II, Chandigarh, orders dated November 06, 2015 (Annexure P-17) and February 11, 2016 (Annexure P-24) passed by the learned Debts Recovery Appellate Tribunal, Delhi and the letter dated March 17, 2016 (Annexure P-28) issued by the State Bank of India.

(2.) Put pithily, respondent no.4, namely, M/s P.I. Jewellers, a private limited company, initially availed cash credit limit of Rs. 03 crores from the State Bank of India, Ludhiana, which was enhanced from time to time and finally enhanced to Rs. 16 crores on 1201 Respondent no. 4, to secure the cash credit limit, mortgaged one commercial building in the name of its Director Mr. Aman Dhir and another residential house owned by Surinder Mohan Dhir (respondent no.5). However, when respondent no.4 could not adhere to the financial discipline of the bank, its loan account was declared as Non Performing Asset ("NPA") on 30.6.2013. Finally, to recover its dues, the bank initiated recovery proceedings against respondent no.4 and issued notice dated 20.5.2014 (Annexure P-1) under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short "SARFAESI Act") to recover the entire dues along with future interest and expenses against which respondent no.4 filed objections under section 13(3A) of the Act, which were rejected by the bank vide letter dated 27.8.2014. Thereafter, the bank took symbolic possession of both the mortgaged properties on 29.10.2014 and put the same to sale by e-auction fixing the reserve price of residential property at Rs. 6.57 crores ( the subject matter of the writ petition). The last date for submission of the bid by the prospective bidders along with their earnest money with deposit of 10% of the reserve price was 8.6.2015. Thereafter, e-auction was conducted on 16.2015 under due intimation to the Directors of respondent no.4 and the guarantor, namely, Surinder Mohan Dhir (respondent no.5). In the meantime, the bank approached the District Magistrate, Ludhiana, by way of an application under section 14 of the "SARFAESI Act", to take physical possession of the mortgaged properties which was allowed vide order dated 20.5.2015. On 8.6.2015, the petitioner submitted its bid to the bank to participate in the e-auction process for the purchase of residential property along with earnest money deposit of Rs. 66 lakh. On coming to know that the bank has received bid of the petitioner for the purchase of residential property, respondent no.5 (guarantor) filed Securitisation Application (SA) No. 324 of 2015 before the Learned Debts Recovery Tribunal-II, Chandigarh (for short "the DRT") without impleading the petitioner as a party-respondent. During the course of hearing of the aforesaid Securitisation Application of respondent no.5, the learned DRT noticed regarding the receipt of bid of the petitioner for a sum of Rs. 6.58 crores against the residential property mortgaged by respondent no.5, who through his counsel offered to deposit a sum of Rs. 6.60 lakhs, i.e., Rs. 2 lakhs more than the bid of the petitioner. Considering this fact, the learned DRT allowed the aforesaid SA of respondent no.5 on 16.2015 directing him to deposit a sum of Rs. 67 lakh on or before 15.6. 2015, Rs. 99 lakh on or before 27.6.2015, Rs. 1.65 crores on or before 13.7.2015, Rs. 30 lakh by 24.9.2015 and the balance amount in installments or lumpsum along with simple interest @ 10% latest by March 15,2016 with the rider that in case of default in any of the due agreed payment by respondent no.5, the bank will be at liberty to proceed in accordance with law and respondent no.5 shall have no objection thereafter and in case the entire amount of Rs. 6.60 crores is cleared, the title deeds would be returned to the borrower and his nominee, in accordance with law.

(3.) It is significant to mention that when on 12.6.2015, the learned DRT allowed the SA No.324 of 2015 and directed respondent no.5 to deposit the amount of Rs. 6.60 crores in the manner in which it is prescribed, the e-auction of the residential house of respondent no.5 was also held in between 11 AM to 1.00 PM, the same day. In the e-auction, the petitioner gave the bid of Rs. 6.58 crores, which was accepted by the bank. As such, as per terms and conditions of the sale notice, the petitioner further deposited another sum of Rs. 98.70 lakh with the bank by way of RTGS on 12.6.2015 to complete 25% of the bid amount. However, being not satisfied with the order dated 12.6.2015 (Annexure P-6) passed by the DRT, granting nine months' time to respondent no.5 to deposit Rs. 6.60 crores offered by him, the bank filed an appeal before DRAT challenging the said order and simultaneously, asking the petitioner to give an undertaking to deposit the balance 75% of the bid amount within 15 days from the date of decision of the DRT. In appeal, the bank, inter alia, submitted that the procedure adopted by the learned DRT was totally contrary to law, inasmuch as the petitioner, as per the provisions of the SARFAESI Act, was required to deposit the entire bid, within 15 days from the date of confirmation of sale, whereas the learned DRT had granted a period of more than nine months to respondent no. 5 to pay the amount of Rs. 6.60 crores, i.e., just 0.5% higher than the bid amount of the petitioner. The bank also raised a grouse before the learned DRAT that the learned DRT should have ordered inter se bidding between the petitioner and respondent no.5. After hearing the bank, the learned DRAT, vide order dated 7.8.2015 (Annexure P-11), stayed the operation of the order dated 12.6.2015 (Annexure P-6). The DRAT also observed in its aforesaid order that one can understand that if the borrower was ready and willing to deposit the complete amount, he could do so within the time the auction purchaser was expected to deposit this amount. After stay of the operation of order dated 12.6.2015 (Annexure P-6) passed by the DRT, the bank, pursuant to order dated 7.8.2015 (Annexure P-11) passed by the DRAT, called upon the petitioner to pay the balance 75% bid amount of Rs. 6.58 crores within a period of 15 days, which the petitioner deposited within the stipulated time and consequently, the authorised officer of the bank issued a sale certificate of the residential property held by respondent no.5 in favour of the petitioner on 4.9.2015. After issuing sale certificate to the petitioner, the bank took physical possession of the residential property on 9.9.2015 in terms of order dated 20.5.2015 passed by the learned District Magistrate, Ludhiana under section 14 of the SARFAESI Act. After taking physical possession, the bank, vide letter dated 9.9.2015 (Annexure P-13), informed the petitioner on the same day that the physical possession of the residential property can be handed over to it at its convenience. However, respondent no.5 challenged the order dated 07.8.2015 (Annexure P-11) passed by the DRAT by way of Civil Writ Petition No.19168 of 2015 before this court and offered to deposit the entire outstanding amount immediately against his mortgaged residential house. This court recording the aforesaid contention of respondent no.5 that he was ready and willing to deposit the entire outstanding amount by 11.9.2015 itself and had brought one bank draft and a cheque in this regard, issued notice of motion while ordering status quo to be maintained as it existed on the date of passing of the order, i.e., on 7.8.2015. Pursuant thereto, the bank restored the physical possession of the residential house to respondent no.5. In the meanwhile, learned DRAT disposed of Appeal no.246 of 2015 filed by the bank against order dated 12.6.2015 (Annexure P-6) upholding the order passed by the learned DRT, observing that by paying a sum of Rs. 6.60 crores to the bank, respondent no.5 will be able to save his residential property and the bank would recover a bit more amount than the bid received by the bank from the petitioner. The learned DRAT recorded that respondent no.5 had already paid the total amount of Rs. 6.60 crores and directed the bank to return the title deeds of the residential house to respondent no.5. Aggrieved by the said order dated 6.11.2015 (Annexure P-17) passed by the DRAT, the petitioner as well as the bank filed separate writ petitions before this court on 2.12.2015 (Annexure P-18). However, the petitioner, on 07.12.2015, withdrew its writ petition with the direction to first approach the learned DRAT to recall the said order dated 6.11.2015 (Annexure P-17), and thereafter, the petitioner again approached the DRAT and moved an application for impleading the petitioner as party-respondent, in Appeal No.246 of 2015 filed by the bank and for recalling order dated 6.11.2015. In the meantime, Civil Writ Petition No.19168 of 2015 filed by respondent no.5 came up for hearing before this court. Since in view of order dated 6.11.2015 (Annexure P-17) passed by the learned DRAT, the writ petition was rendered infructuous, therefore, the same was dismissed as such. Vide order dated 11.2.2016 (Annexure P-24), the learned DRAT dismissed the application of the petitioner for impleadment of respondent no.5 and recall of the order dated 6.11.2015 on the ground that since the main Appeal no.246 of 2015 filed by the bank had already been dismissed on merits, therefore, no useful purpose would be served in recalling the order dated 6.11.2015. In view of the above factual position, the bank also withdrew its CWP No.25834 of 2015 by filing Civil Misc. Application No.2305 of 2016 and the bank also wrote a letter dated 18.2.2016 to the petitioner, asking it to return the sale certificate issued on 4.9.2015. Thereafter, on 17.2016 the bank issued another letter to the petitioner informing that its bid amount of Rs. 6.58 crores was kept in two fixed deposit receipts (FDRS) and the lien of the bank was also marked on the said FDRs. However, after the decision of the learned DRAT and this court, the bank, vide letter dated 17.3016, informed the petitioner that it (bank) has released the title deeds of the residential property to respondent no.5 and has also cancelled the lien on the two FDRs of the petitioner amounting to Rs. 6.58 crores.