Bank PD Baroda Tho'' It''s Authorised Officer vs Baradraj Kuspatraj Singhavi and Others

A.G. Uraizee, J.—The petitioner-bank, by filing the present petition under Article 226 /227 of the Constitution of India, has challenged three orders of even date i.e. 15th May 2007 passed by the Debt Recovery Appellate Tribunal, Mumbai [''the Appellate Tribunal'', for short] in Misc. Application No. 392 of 2007 in Appeal No. 158 of 2007, Misc. Application No. 393 of 2007 in Appeal No. 158 of 2007 and in Appeal No. 158 of 2007. The petitioner-bank had granted Cash Credit (Hypothecation) Facility to Respondent No. 2 - partnership firm of which Respondent No. 1, 3, 4 and 5 were partners while respondent Nos. 7 and 8 stood as guarantors for repayment of the cash credit facility. The payment of the cash credit facility had been defaulted as a result of which the petitioner-bank filed Original Application No. 415 of 2002 before the Debt Recovery Tribunal, Ahmedabad (for short, ''the Tribunal''). The Tribunal allowed the said Original Application with cots and made respondents Nos. 1 to 7 jointly and severally liable to pay Rs. 12,19,396 with Simple Interest at the rate of 9 per cent per annum to the petitioner-bank.

Feeling aggrieved, Respondent No. 1 has preferred appeal being Appeal No. 158 of 2007 before the Appellate Tribunal. Respondent No. 1 has also preferred Misc. Application No. 392 of 2007 with a prayer for waiver of deposit amount and Misc. Application No. 393 of 2007 for stay of the order of the Tribunal. The Appellate Tribunal allowed Misc. Application No. 392 of 2007 for waiver of deposit and disposed of Misc. Application No. 393 of 2007 by observing that the appeal is admitted and interim stay has been granted and therefore the present application does not survive. The Appellate Tribunal admitted Appeal No. 158 of 2007 and stayed the execution of the decree against the appellant i.e. Respondent No. 1 only by the impugned orders of even date.

Respondent No. 4 is deleted while rest of the respondents are duly served. Learned counsel for respondent No. 1 has since been elevated to the Bench of this Court. Notice issued to Respondent No. 1 by the office upon elevation of learned counsel for Respondent No. 1 has not come back.

Heard learned counsel, Mr. Indravadan Parmar for the petitioner

It is the contention of the learned counsel for the petitioner that the Appellate Tribunal has committed a grave error in passing the impugned orders and the same are illegal, arbitrary and unreasonable and therefore they may be set aside by allowing the present petition. At the outset, it is pertinent to note that the Tribunal has allowed Original Application No. 415 of 2002 for payment of dues of Rs. 12,19,396 with interest at the rate of 9% per annum against all the respondents, but it is the respondent No. 1 alone who has approached the Appellate Tribunal to challenge the order of the Tribunal. The order of the Appellate Tribunal in Appeal No. 158 of 2007 whereby the appeal was admitted specifically stated that execution of the decree was stayed against the appellant i.e. Respondent No. 1 only. Though there is no stay against the other respondents, the learned counsel for the petitioner has not shown anything from the record suggesting that the Bank has taken steps to recover the decreetal amount from the other respondents as the decree was passed by the Tribunal against all the respondents jointly and severally. Therefore, the petitioner-bank could have recovered the outstanding dues from other respondents. Be it as it may, the sole contention of the learned counsel for the petitioner is that the Appellate Tribunal has committed an illegality in granting the waiver application, which cannot be countenanced. Learned counsel for the petitioner could not dispute that the Appellate Tribunal has got discretion to grant waiver application. In our opinion, the Appellate Tribunal has exercised the discretion vested in it by granting the waiver application and we do not consider it expedient in the facts of the present case to substitute our discretion in place of the discretion exercised by the Appellate Tribunal. The petition lack merits and is hereby dismissed. It is, however, open for the petitioner to move an application before the Appellate Tribunal for expeditious hearing of Appeal No. 158 of 2007. Rule is discharged with no order as to costs.