Madras High Court
State Bank Of India vs Mr.C.S.Lakshmi Narasimhan on 9 July, 2018
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.07.2018 CORAM THE HON'BLE MR.JUSTICE S.MANI KUMAR & THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN C.R.P(PD)No.3878 of 2017 and C.M.P.No.18122 of 2017 State Bank of India Mahalingapuram Branch Rep. By its Deputy Manager SARC, III Floor, Treasury Branch, Chennai 6. ... Petitioner/1st Respondent Vs.
1.Mr.C.S.Lakshmi Narasimhan
2. Mrs.S.Chitra ... 1st and 2nd Respondents/ 1st and 2nd Appellants
3. Mr.Ballabh Dwarkani ... 3rd Respondent / 2nd Respondent Civil Revision Petition is filed under Article 227 of Constitution of India, to set aside the order dated 22.08.2017 in M.A.No.138 of 2017 passed by the Debt Recovery Appellate Tribunal, Chennai.
For Petitioner : Mr.G.Senthil Kumar For Mr.S.Sethuraman For Respondents : Mr.G.Desingu For R1 & R2 Mr.V.Chandrasekaran For R3 Judgment (Judgment of the Court was delivered by V.BHAVANI SUBBAROYAN,J.,)
This Civil Revision Petition has been filed against the order made in M.A.No.138 of 2017 dated 22.08.2017 by the Debt Recovery Appellate Tribunal (hereinafter referred to as "DRAT").
2. The brief facts of the case leading to the present case are that the first and second respondents/borrowers have availed a Housing Loan for a sum of Rs.17,50,000/- from the petitioner bank for purchasing a house flat together with undivided share of land bearing House Plot No.401, Block "Manju", 4th floor, Door No.9, Choolaimedu High Road, Chennai 94, and the same was mortgaged for the said loan amount. The petitioner bank further stated that the borrowers had defaulted in repayment of the loan amount and due to which, they recalled the credit facility granted to the respondents and initiated proceedings before Debt Recovery Tribunal - I (hereinafter referred to as "DRT-I") Chennai, under SARFAESI Act in O.A.No.72 of 2009 seeking to recover a sum of Rs.23,68,425/- with interest and cost thereon.
3. By an order dated 18.12.2009, DRT- I, allowed O.A.No.72 of 2009, as the first and second respondents herein/borrowers remained exparte, and Recovery Certificate in DRC No.5 of 2010, was issued on 13.01.2010. Thereafter, the mortgaged property was brought for sale and sold in public auction on 24.11.2011, for a sum of Rs.50,40,000/- in favour of the third respondent herein.
4. The first and second respondents, the borrowers, filed a petition to set aside the exparte order dated 18.12.2009 made in O.A.No.72 of 2009 along with Miscellaneous Application in M.A.No.67 of 2011 to condone the delay of 614 days. DRT-I, by an order dated 01.02.2012, had imposed a precondition for condoning the delay by directing the respondents to deposit a sum of Rs.23,68,425/- to the petitioner bank. In compliance of the said order, on 15.03.2012, the first and second respondents have deposited a sum of Rs.10,00,000/- and undertook to pay the balance amount of Rs.13,68,425/- on or before 26.04.2012. Since the borrowers had deposited the said balance amount on 24.02.2012, DRT-I, by an order dated 27.04.2012, condoned the delay and set aside the exparte order dated 18.12.2009 and further posted the matter for next hearing on 28.06.2012.
5. On 28.06.2012, when the case was taken up for hearing, DRT-I has directed the petitioner bank to calculate the interest payable by the borrowers and once the interest is calculated and informed, the same would be paid by the borrowers within a period of 60 days, and till such time, possession of the tenant should not be disturbed, and further, posted the case before the Recovery Officer on 13.07.2012 .
6. However, the petitioner/State Bank of India, instead of filing a memo with regard to calculation of interest, filed a memo stating that since the loan account was closed pursuant to the sale and appropriation of the sale proceeds towards the outstanding due, the bank was unable to calculate the interest. Accordingly, on 13.07.2012, the Recovery Officer has taken up the matter and recorded the memo filed by the certificate holder without giving further date for hearing the case.
7. While that being the case, on 25.10.2012, when the case was taken up for hearing, the learned counsel for the petitioner bank has submitted that the property involved in the application was sold and they have recovered the entire dues and nothing remains to be recovered in the Recovery Certificate and hence, sought for closure of the Recovery Certificate. Recording the above submissions made by the petitioner bank, the Recovery Officer has closed the Recovery Certificate in DRC.No.5 of 2010 as settled.
8. Meanwhile, On 08.08.2012, the auction purchaser filed I.A.Sr.No.6722 of 2012 before DRT-I, seeking for a direction to the Recovery Officer to issue sale certificate in his favour. By order dated 05.12.2012, DRT-I has directed the Recovery Officer to issue sale certificate in favour of the auction purchaser, and as per the direction, the Recovery Officer issued a sale certificate on 24.12.2012 and possession of the property was also handed over to the auction purchaser on the same day.
9. Challenging the order dated 05.12.2012, borrowers have filed an appeal under Section 20 of RDDB and FI Act, before the DRAT along with a condone delay petition, seeking for waiver, and the same was posted on 08.11.2016. Again, when the case was taken up for hearing on 08.11.2016, DRAT has directed the borrowers to deposit a sum of Rs.15.10 lakhs for granting waiver. Instead of complying with the said order, challenging the same, the borrowers have filed an application for modification of the said order dated 08.11.2016, which the DRAT had dismissed on 25.01.2017
10. Aggrieved by the same, the respondents/borrowers have filed W.P.No.136 of 2017 before this Court, and this Court, by an order dated 11.07.2017, allowed the Writ Petition by imposing a cost of Rs.10,000/- on the petitioner bank. Thereafter, the appeal filed by the borrowers was taken on file, as directed by this Court. While considering the rival submissions, DRAT held that the sale of immovable property should not be the main function of the bank officials and accordingly, held that the sale certificate is unsustainable, and further held that the respondent bank has not even paid the cost of Rs.10,000/- to the appellants, and hence, DRAT has allowed the appeal, directing the Presiding Officer of DRT-I, to proceed with O.A.No.72 of 2009 from the stage of proceedings dated 28.06.2012 and conclude the hearing according to law within 3 months from the date of receipt of a copy of the said order. Aggrieved by the same, the present Revision Petition has been filed by the petitioner bank.
11. Upon hearing the arguments of the learned counsel for the petitioner bank, this Court, by an order dated 08.11.2016, granted an interim stay of the impugned order dated 22.08.2017 made in M.A.No.138 of 2017, and the stay was periodically extended. Upon notice, the respondents/borrowers have filed documents by way of type-set on 23.01.2018.
12. Heard the learned counsel for the petitioner and the learned counsel for the respondents, and perused the materials available on record.
13. The learned counsel for the petitioner bank, vehemently contended that DRAT was not correct in setting aside the proceedings that took place after 28.06.2012 and further directing DRT-I to proceed from the stage of proceedings dated 28.06.2012. The learned counsel for the petitioner bank, would also contend that the Recovery Officer, by his order dated 16.01.2012, has confirmed the sale, after having received the full sale consideration and poundage fee from the auction purchaser, by ordering the O.A as closed and settled. Hence, there cannot be further proceedings beyond such order passed by the Recovery Officer.
14. The learned counsel for the petitioner bank, also contended that DRAT, failed to consider the note of the Recovery Officer dated 28.08.2012 to the Presiding Officer of DRT-I, stating that the case was posted for hearing to set aside the petition or settlement and requested the matter to be listed on 25.10.2012, which was also intimated to the borrowers. On 05.12.2012, DRT-I has passed an order in IA.No.6722 of 2012, filed by the auction purchaser who has purchased the property during the DRC proceedings. The learned counsel for the petitioner bank, would also contend that DRAT, merely allowed the appeal, because this Court has imposed a cost of Rs.10,000/- on the petitioner bank, which has not been complied as on date, which cannot be the only ground to allow the appeal.
15. In support of his arguments, the learned counsel for the petitioner relied on the Judgment reported in 1967 AIR 608 dated 08.11.1966, wherein, it has been discussed about the status of a bonafide purchaser pending lite and would argue that the procedure contemplated under the Income Tax Act to be followed, to set aside the sale certificate, by filing an application under Rule 60. The Honorable Supreme Court has observed as follows:
"The policy of the Legislature seems to be that unless a stranger auction-purchaser is protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was untimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the Judgment-debtor who feels that the decree ought not to have been passed against him. On the facts of this case, it is difficult to see why the Judgment-debtor did not take resort to the provisions of O.XXI r.89. The decree was for a small amount and he could have easily deposited the decretal amount besides 5 per cent of the purchase money and thus have the sale set aside. For reasons which are not known to us he did not do so. Lastly, it was contended that the amendment of Section 47 of the Code of Civil Procedure altered the whole situation inasmuch as by the Amending Act of 1956 auction purchasers are to be treated as parties to the suit. We are not here concerned with the question as to whether restitution can be asked for against a stranger auction-purchaser at a sale in execution of a decree under Section 144 of the Code of Civil Procedure and express no opinion thereon. In our opinion, on the facts of this case, the sale must be confirmed.
16. The petitioner has also cited an unreported Judgment, rendered by a Hon'ble Division Bench of this Court, in C.R.P.(PD).Nos.936 and 937 of 2012, in the case of [P.Shuyjaath Raheed and Others Vs The State Bank of India and Others], and another Judgment in the case of [M/s.Janatha Textiles and Others Vs Tax Recovery officer and Another] in Civil Appeal No.6539 of 2003 by the Honorable Supreme Court of India. In the said Judgment, the learned counsel for the petitioner drew our attention to paragraph 16 which reads as follows:
"Respondent department in the counter affidavit stated that the appellant firm had alternate efficacious remedy by way of filing a petition under Rules 60 and 61 of the second schedule to the 1961 Act. The appellant ought to have availed of the statutory remedy for ventilating its grievances instead of filing a petition before the High Court."
17. The respondents have contended that once the order in O.A.No.72 of 2009 has been set aside by DRT-I, further proceedings which had taken place after the order passed by DRT-I, has become redundant and the sale by way of auction to third party is indirectly set aside. Hence, the present Revision Petition has to be dismissed.
18. In support of the claim, the respondents relied on the Judgment reported in 2013 (2) CTC 356, in the case of [C.N.Paramsivan and another Vs Sunrise Plaza, through Partner and Others], wherein, at Paragraph 27, it has been held as follows:
"57.(1) On every sale of immovable property, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent on the amount of his purchase money, to the officer conducting the sale; and, in default of such deposit, the property shall forthwith be resold.
(2) The full amount of purchase money payable shall be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of the sale of the property."
19. This Court has perused the records filed by way of type set and heard the arguments of the learned counsel on both side.
20. From the documents, it could be seen that the respondents 1 and 2 originally availed a housing term loan facility to the tune of Rs.17,50,000/- which was sanctioned by the petitioner bank on 08.05.2002, for purchasing a flat together with undivided share of land. The respondents 1 and 2 have committed default and effected a part payment for a sum of Rs.1,99,250/- totally, and hence, the petitioner bank has initiated proceedings before the DRT-I, by filing Original application in O.A.No.72 of 2009 to recover a sum of Rs.23,68,425/-.
21. In O.A.No.72 of 2009, a final order was passed by DRT-I against the respondents 1 and 2 on 18.12.2009 stating that the respondents have to pay a total sum of Rs.23,68,425 jointly or severally, together with interest at 11% per annum along with monthly rests from the date of filing of the Original Application, till the date of realization. Since the first and second respondents remained absent, through out the proceedings in O.A.No.72 of 2009 before the DRT-I, an exparte order was passed as against them, and therefore, they have filed an appeal in M.A.No.67 of 2011 seeking to set aside the exparte order dated 18.12.2009 made in O.A.No.72 of 2009.
22. The respondents/borrowers claimed that since they were working at Nairobi, Kenya, and residing out of the country, they were not able to participate in the proceedings in O.A.No.72 of 2009, and further claimed that they were not served with a notice, in respect of the proceedings initiated before DRT-I and no intimation was given by the petitioner bank prior to filing of the O.A.No.72 of 2009. Therefore, the respondents have filed an appeal in MA.No.67 of 2011 along with the petition to condone the delay of 614 days, to set aside the exparte order dated 18.12.2009.
23. The petitioner bank has filed a detailed counter to the two miscellaneous applications. Upon hearing the contentions of the learned counsel on either side, and considering the documents on record, it is seen that DRT-I has adjudicated the case at various stages, which is extracted hereunder:
O.A.72 of 2009 dated 01.02.2012 Counsel for petitioner in MA.No.67 of 2011 prays to set aside exparte order passed on 18.12.2009 for Condonation of delay of 649 days. It is the case of the petitioner that the applicant bank has not served summons on him as required by law. However, on going through the records, it is found that summons have also been sent to PB No.689 - 00606, Sarit Centre, Nairobi, Kenya, and as such measures have been taken by the applicant bank to serve notice to the petitioners. Since the petitioners were abroad they would like to present their case only when it is reopened. Tribunal directs the petitioner to deposit a sum of Rs.23,68,425/- with this Tribunal before the next hearing to allow the reopening of exparte order and to contest the same. In the meantime, counsel for applicant bank submitted that property has been sold in DRC.5 of 2010 and sale has been confirmed by the Recovery Officer on 28.12.2011. Call on 15.03.2012.
O.A.No.72 of 2009 dated 15.03.2012 Two D.D.s.No.569729 for Rs.5,00,000/- and DD.No.569730 for Rs.5,00,000 both dated 14.03.2012 presented by the counsel for the defendants towards part compliance of the conditional order. The DDs are handed over to the respondent/applicant bank with direction to deposit the same in no-lien account bearing higher rate of interest. Further, the petitioner also undertakes to pay the balance of Rs.13,68,425/- on or before 26.04.2012. Till such time status quo in respect of the property under DRC should be maintained. In the event, the petitioner fails to deposit the said amount by 26.04.2012, the applicant bank is at liberty to proceed with the DRC proceedings. Further the petitioner is directed that on payment of the entire amount he may file his RS and CPA. Call on 27.04.2012.
O.A.No.72 of 2009 dated 27.04.2012 During the proceedings dated 25.04.2012 in APP 4/2012 a DD for Rs.13,70,000/- was received by this Tribunal (DD.No.18127089 dated 24.02.2012). Since the entire amount of the OA has been deposited, MA.No.67/2011 is allowed. Delay of 649 days is also condoned. SR 4023 and 4024 may be numbered by the registry. Petitioner is directed to file RS by next hearing by giving advance copy to the applicant bank. Recovery Officer is directed not to proceed further in respect of DRC 5 of 2010 until further orders. Applicant bank counsel served a copy of the OA papers to the defendant's counsel. Demand Draft for Rs.13,70,000/- is handed over to the counsel. Mr.K.Sathish Kumar for the applicant bank. For filing RS and CPA call on 28.06.2012.
O.A.No.72 of 2009 dated 28.06.2012 As per the DRC claim DD for 13,70,000/- was handed over to the applicant bank on 27.04.2012, thereby total amount of Rs.23,00,000/- has been deposited as claimed in the Recovery certificate issued and if the interest is calculated they are ready to pay the interest amount also. Accordingly, the applicant bank is directed to calculate interest payable by the certificate debtor and recover the same through DRC. Since the Appeal has been filed by the tenant and the landlord has already paid the entire dues except the interest portion. Once the amount is calculated and informed within 60 days the same should be paid. Till such time the possession of the tenant should not be disturbed. The case is posted before the Recovery Officer on 13.07.2012.
O.A.No.72 of 2009 dated 28.08.2012 In the above matter on 28.06.2012 directed to post this case below Recovery Officer on 13.07.2012 as 23 Lakhs has been deposited as claimed in the Recovery Certificate issued, and if the interest is calculated, they are ready to pay the interest amount also. Accordingly directed the a/bank to calculate the interest payable and to inform within 60 days. (notesheet order Flag"A" Dated 28.06.2012).
On 13.07.2012, Recovery Officer taken up this matter and recorded the memo filed by the certificate holder without giving further dated for hearing the case (Flag"B").
As this case is posted for hearing the set aside petition/RS/CPA or settlement.
Hence, if approved, the above matter to be posted on 25/10 after issuing notice to both sides.
O.A.72 of 2009 dated 25.10.2012 Counsel for the Applicant Bank present and submitted that the properties involved in the present application was sold and recovered the entire dues and nothing remains to be recovered in the Recovery Certificate and submitted orally that Recovery Certificate may be closed. In view of the submissions made by the Applicant Bank, DRC 5 of 2010 is closed as settled. Recovery Officer be informed accordingly.
O.A.No.72/2009 dated 05.12.2012 IA.6722/2012 filed by auction purchaser who has purchased the property in the DRC proceedings. Recovery Officer vide order dated 28.11.2011 has confirmed the sale after having received full sale consideration and poundage fee. The presend application is filed seeking direction to the Recovery Officer to issue Sale Certificate as per the order dated 28.12.2011. The Original OA is already disposed of on 25.10.2012 and DRC was also closed as settled. Since the property is sold by the Recovery Officer in DRC proceedings, Tribunal directs the Recovery Officer to verify the averments made in IA.SR.6722/2012 and proceed as per procedure.
24. On perusal of the above adjudication, it is clear that the entire amount of Rs.23,68,425/- was deposited by the respondents 1 and 2 and DRT-I had condoned the delay of 614 days in filing the appeal in MA.No.67 of 2011, to set aside the exparte order dated 18.12.2009. Infact, it could be seen that on 28.06.2012, DRT-I had directed the petitioner bank to calculate the interest payable by the borrowers and recover the same within a period of 60 days, and till such time, the possession of the tenant should not be disturbed.
25. However, despite a rediness of the borrowers/respondents 1 and 2, to pay the interest as calculated by the petitioner bank, on 25.10.2012, the learned counsel for the appellant bank has submitted that the property involved in the present application was sold already, and since they have recovered the entire dues of the sale amount, nothing remains to be recovered in the Recovery Certificate in DRC.No.5 of 2010 and sought for closure of same, as settled.
26. In view of the submissions made by the applicant bank, on 25.10.2012, DRT-I has allowed the petitioner bank to close the DRC.No.5 of 2010, as settled. Thereafter, the auction purchaser who was successful, in the auction conducted on 24.11.2011, had filed I.A.SR.No.6722 of 2012 before the DRT-I seeking for a direction to the Recovery Officer, to issue sale certificate, as per order dated 28.11.2011. On 05.12.2012, specifying the earlier order dated 25.10.2012, DRT-I has directed the Recovery Officer to verify the averments made in I.A.SR.No.6722 of 2012 and to proceed further as per the procedure.
27. In fulfilment of the order passed by DRT-I in O.A.No.72 of 2009 dated 18.12.2009, the Recovery Officer also issued a sale certificate of the schedule mentioned property to the auction purchaser on 24.12.2012 and therefore, being aggreived, the first and second respondents have filed an appeal in AIR.No.752 of 2013 before DRAT, seeking for an order to set aside the proceedings dated 27.04.2012, 28.06.2012, 28.08.2012, 25.10.2012 and 05.12.2012 made in O.A.No.72 of 2009 and to set aside the sale certificate issued by the Recovery Officer in DRC.No.5 of 2010, and further sought for a direction, directing the petitioner bank to restore possession to the first and second respondents herein.
28. The first and second respondents herein filed an application under Section 21 of the RDDB and FI Act, along with the condone delay petition, to set aside the order dated 05.12.2012 seeking for weiver. DRT-I, by an order dated 08.11.2016 had directed the borrowers to deposit a sum of Rs.5,10,000/- for granting weiver. However, filing another appeal, the first and second respondents have sought for modification of the said order dated 08.11.2016 which the DRAT did not accept and hence, dismissed the same on 25.01.2017. Aggrieved by the said order, the first and second respondents had preferred a Writ Petition in W.P.No.136 of 2017 and this Court, by an order dated 11.07.2017, allowed the Writ Petition of the respondents by imposing a cost of Rs.10,000/- on the petitioner bank. Thereafter, as per the order of this Court, the appeal filed by the respondents 1 and 2 before DRAT in M.A.No.138 of 2017, challenging the order dated 25.10.2012 and subsequent proceedings made in O.A.No.72 of 2009, was allowed by DRAT by setting aside the earlier proceedings of the DRT-I made in OA.No.72 of 2009 and also by setting aside the sale certificate issued by the Recovery Officer in favour of the auction purchaser.
29. The DRAT had also directed the Presiding Officer of DRT- I to proceed with O.A.No.72 of 2009 from the stage of 28.06.2012 and to conclude the hearing in accordance with law, within a period of 3 months from the date of receipt of a copy of the said order. It could be seen from the adjudication proceedings on 28.06.2012 before the DRT-I, the entire amount of Rs.23,00,000/- had been deposited to the petitioner bank, thereby, respondents 1 and 2 have complied, as per the claim made in the Recovery certificate issued and they have complied with the entire order passed by the DRT-I which was a pre-condition to condone the delay of 614 days and to set aside the exparte order dated 18.12.2009. While that being so, DRT-I having set aside the exparte order dated 18.12.2009, had further directed the petitioner bank to work out the interest payable by the borrowers, so that the borrowers can pay the same to the petitioner bank, which the borrowers had also accepted to pay, as stipulated by DRT-I. However, despite having the knowledge that the condition has to be complied immediately, the petioner bank has not chosen to challenge the order dated 28.06.2012. Infact, the bank had not chosen to challenge any of the proceedings subsequently initiated by the borrowers to set aside the exparte order.
30. It could be seen that the Recovery Officer, despite having the knowledge that the exparte order dated 18.12.2009 was set aside by the Recovery Tribunal has of issued a sale certificate pursuant to the application made by the auction purchaser in I.A.SR.No.6722 of 2012.
31. In the Judgment cited by the petitioner's counsel, especially in the case reported in 1967 AIR 608, in Civil Appeal No.1322(N) of 1966, the Honourable Supreme Court dealt with a case regarding confirmation of sale in favour of the auction purchaser after the exparte decree has been set aside subsequently. The said case cited by the petitioner's counsel is totally different from the case in hand, because, the question in that case before the Honourable Supreme Court was whether the sale of immovable property in execution of a money decree ought to be confirmed when it is found that the exparte decree which was put into execution petition has been subsequently set aside. Further, in the said Judgment, it is held as follows:
"The facts are simple. One Swaran Singh obtained an exparte decree on February 27,1961 against Gurdial Singh for Rs.519/-. On an application to execute the decree, a warrant for the attachment of a house belonging to the Judgment-debtor was issued on May 10,1961. At the sale 'which took place, the appellant before us became the higher bidder for Rs.5100/- on December 16, 1961. On the 2nd of January 1962, the Judgment-debtor made an application to have the exparte decree set aside. On January 20, 1962 he filed an objection petition against the sale of the house on the ground that the house which was valued at Rs.25,000/- had been auctioned for Rs.5,000/- only and that the sale had not been conducted in a proper manner inasmuch as there was no-due publication of it and the sale too was not held at the proper hour. By an order dated April 19, 1962, the executing court stayed the execution of the decree till the disposal of the application for setting aside the exparte decree. On October 26, 1962 the exparte decree against the defendant-Judgment-debtor was set aside. On Nevember 3, 1962 the auction purchaser made an application for revival of the exection proceedings and for confirmation of the sale under O.XXI, r.92 of the Code of Civil Procedure. On November 7, 1962 the Judgment-debtor filed an objection thereto contending that the application for revival of execution proceedings was not maintainable after setting aside the exparte decree and that the auction purchaser was in conspiracy and collusion with the decree-holder and as such not entitled to have the sale confirmed. It is to be noted here that the case of collusion was not substantiated. On August 31, 1963 the executing court over-ruled the objection of the Judgment-debtor and made an order under O.XXI,r.92 confirming the sale. This was affirmed by the first appellate court. On second appeal to a single Judge of the Punjab High Court, the auction purchaser lost the day. An appeal under cl.10 of the Letters Patent in the Punjab High Court met the same fate. Hence this appeal.
32. The above citation pointed out by the petitioner's counsel, will not apply to the present case, as there was no sale certificate issued to the auction purchaser immediately after the same was confirmed to him. In the case on hand, the Recovery Officer issued a certificate of sale of the immovable property on 24.12.2012 even though DRT-I, on 28.06.2012, has already set aside the exparte order dated 18.12.2009 made in O.A.No.72 of 2009. In such circumstances, once the exparte order is set aside, the Tribunal should proceed from the stage of setting aside the exparte order and the parties are restored back to the original position as if there was no further order and only should proceed from that stage. As such in the present case, the exparte order dated 18.12.2009 came to be set aside on fulfillment of the condition imposed by DRT-I by its order dated 01.02.2012 made in M.A.49 and 67 of 2011 filed by the borrowers for seting aside the exparte order and to condone the delay in filing the set aside petition. However, the petitioner bank has not chosen to challenge the order passed by the DRT-I setting aside the exparte order dated 18.12.2009 made in O.A.No.72 of 2009, and thereby, it has become final.
33. Under these circumstances, when the Appellate Tribunal has decided MA.No.138 of 2017 filed by the respondents/borrowers and allowed the appeal by an order dated 22.08.2017 by directing the Presiding Officer of DRT-I, to proceed from the stage of 28.06.2012 is well founded, it does not crave any interference from this Court.
34. In the facts and circumstances of the case, the Revision Petition filed by the petitioner bank, fails and the order passed by the DRAT in MA.No.138 of 2017 dated 22.08.2017 is sustained. It is hereby, further directed the DRT-I shall commence the proceedings in OA.No.72 of 2009 from the stage of 28.06.2012 and the same shall be disposed of within a period of 3 months from the date of receipt of a copy of this order. Accordingly, this Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
[S.M.K.J] [V.B.S.J] 09.07.2018
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
S.MANI KUMAR.J.,
and
V.BHAVANI SUBBAROYAN.J.,
raja
To
1. The Debt Recovery Tribunal - I,
Chennai.
2. The Debt Recovery Appellate Tribunal,
Chennai.
Pre-delivery Order in
C.R.P(PD)No.3878 of 2017
and C.M.P.No.18122 of 2017
09.07.2018