ADANI POWER MAHARASHTRA LTD. Vs. IFCI

JUDGEMENT

(1.) HEARD parties' Counsel on appeal. The instant appeal has been fried qua the order dated 16.2.2012 passed by DRT -II, Delhi in Appeal No. 18/2012, whereby the direction given by the Recovery Officer (RO), vide order dated 19.1.2012 in RC No. 171/2001, to the appellant to vacate the property in question within two weeks has been confirmed but the direction to pay the penalty of Rs. 1.50 lacs for each day, has been set aside and the matter has been remanded to the Recovery Officer for fresh adjudication of the issue of liability of the payment of penalty. Mr. Nagar submits that the appellant is aggrieved only with the order qua the vacation of the property in question. Certain admitted facts, as emerged from the submissions of the parties' Counsel, are that an OA filed by IFCI (respondent No. 1) against Lan Eseda Industries (respondent No. 2) was allowed and an R.C. was accordingly issued. In the recovery proceedings, the property bearing Plot No. C -4/1 and C -4/2 measuring about 99 acres, situated at Gondia Industrial Area, Village Mandipar, Taluka and Distt. Gondia, Maharashtra of the CD/respondent No. 2, hereinafter referred to as the property in question, was put to auction sale by the R.O. wherein Plot No. C -4/1 was purchased by M/s. Hari Rice and Agro Pvt. Ltd. (respondent No. 4) and Plot No. C -4/2 was purchased by D.J. Enterprises (respondent No. 3). But before the sale could be confirmed, one of the bidders (M/s. Samvijay Rolling Mills) filed objection before the R.O., challenging the sale. The R.O., however, dismissed those objections and on 6.8.2008 the sale was confirmed and sale certificates were issued to the auction purchasers. Against the dismissal of the objections, an appeal was preferred by the objector and the DRT, vide order dated 6.10.2008, set aside the auction sale. The auction purchasers, respondent Nos. 3 and 4, preferred appeal before this Tribunal against the said order of the DRT, but this Tribunal vide order dated 9.6.2009, dismissed the said appeal and since in the meanwhile auction purchasers had come in possession over the property in question, they were held to be trespassers and were directed to be evicted within three weeks. The auction purchasers assailed the order of this Tribunal in Writ Petition WP(C) No. 10219/2009, before the Hon'ble Delhi High Court, but the same was dismissed vide judgment dated 4.5.2010 and the observation of this Tribunal that the possession of the auction purchasers is of that a trespasser and they are liable to be evicted, was upheld. The order of the High Court was challenged before the Hon'ble Supreme Court, but the SLP was dismissed in limine on 27.9.2010.

(2.) IN the meanwhile, on 1.8.2010, respondents 3 and 4 had inducted Adani Power Maharashtra Ltd., the appellant, as tenant over the property in question allegedly representing their ownership on the basis of the sale certificates but suppressing that the sale in their favour had been set aside. The appellant, an electrical generating company, having a project for construction of a power plant at a nearby land, stored the equipments, machinery, etc., which, according to Mr. Nagar, were weighing about 97000 MT and worth about Rs. 1000 crores, on the property in question. The RO had appointed a Court Receiver for taking the physical possession over the property in question on the application of the CH, but when the Receiver visited the site he found heavy plant, machinery and equipments stored all over the property in question and as such he could not take physical possession thereof and submitted his report to the RO. The RO then issued notice to the appellant. The appellant appeared on 5.1.2012 and filed application before the RO seeking leave to vacate the property in question by the end of December, 2012. The RO dismissed that application vide order dated 19.1.2012, and directed the appellant to vacate the property in question within two weeks and also imposed a penalty of Rs. 1.5 lacs per day for the use and occupation thereof. The appellant challenged that order in Appeal under Section 30 of the RDDBFI Act before the Presiding Officer of the DRT -II, Delhi and the DRT disposed of that appeal by the order impugned with the directions as has been mentioned above.

(3.) MR . Khan, the Counsel for the CH, respondent No. 1, submits that as per the appellant, it was cheated/defrauded by respondents 3 and 4 by misrepresenting about their title over the property in question, but no report has been lodged by it with the police or any concerned authority against them, which shows that the appellant was in the knowledge of all the facts qua the title of the property in question. He also submits that the appellant is seeking to continue its unlawful possession over the property in question, but since its possession is on the basis of alleged lease on behalf of respondent Nos. 3 and 4 who have already been held to be trespassers, therefore, it cannot be allowed by this Tribunal to remain in possession even for a single day.