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Judgment
Ajay Rastogi
Matter has come up on application U/Art. 226(3) of the Constitution of India seeking vacation of interim order dt.12/11/2008. However, at joint request, matter has been finally heard at this stage.
It is a second round of litigation at the behest of petitioner. Earlier joint petition (CWP-5906/2008) came to be filed by the petitioner alongwith principal borrower (M/s Glorious Marbles (P) Ltd, Nathdwara (Rajasmand) and decided vide agreed order dt.21/08/2008 (Ann.1) - operative part whereof reads ad infra:
"In the facts and circumstances, it is directed that the respondents may proceed to notify the date of auction of the mortgaged property. The date for the auction shall not be earlier than eight weeks from today.
Meanwhile, the petitioner is permitted to approach the Bank with buyers for purchase of the hypotheticated goods and in case the conclusion of the sale of the marble the consideration shall be directly paid to the respondent-Bank. For this purpose, four weeks time is allowed to the petitioner.
In case however, after depositing of the sale consideration received from the sale of the hypothetic goods, there remains any outstanding amount, the Bank shall convey the same within 3 days to the petitioner and the petitioner would be liable to deposit the same with the Bank within two weeks thereafter.
In case the petitioner fails to clear the dues within a period of 4 weeks allowed for the sale of the hypothetic goods and a further period of two weeks from being informed of any further o9utstanding amount the respondent Bank would be free to proceed with auction sale of the hypothetic goods and/or mortgaged property of the petitioner in accordance with the auction notice. The date to be fixed for the auction shall not be less than 8 weeks from today which is fixed as 20/10/2008, as agreed. In view of the above and the agreed order passed, the writ petition as well as the application under Article 226(3) of the Constitution of India stand disposed of.
Counsel for petitioner submits that in termsof order dt.21/08/2008 (supra), the petitioner, who is one of guarantors, submitted application dt.11/09/2008 (Ann.2) in the Office of respondent-Bank for giving him permission for disposal of hypothecated goods referred to in order dt.21/08/2008 (supra) and after settling against outstanding dues, balance could be recovered by auctioning the mortgaged property. Counsel further submits that no decision was taken on the application dt.11/09/2008 submitted by the petitioner and in the absence of efforts being made by the Bank in disposing of the hypotheticated property, auction proceedings being arbitrarily initiated pursuant to the agreed order dt.21/08/2008 (supra), were wholly unwarranted, which has compelled the petitioner to approach this Court.
Counsel further submits that about the property having been put to auction, a protest letter was also sent on 20/10/2008 (Ann.4) raising objections but were not taken note of by the Bank or by the agent working at the behest of the Recovery Officer (DRT).
Counsel has tried to persuade this Court by way of letter produced alongwith rejoinder that efforts were made to dispose of the hypotheticated goods first and thereafter to auction the property and he brought prospective buyers but due to non-co-operation of the respondent Bank, hypothecated goods could not have been disposed of and in absence whereof, proceedings for auction of the mortgaged property of the guarantor could not have been initiated and this is the cause of grievance which the petitioner has raised by way of instant petition.
It has also been brought to the notice of this Court that principal borrower had preferred CWP-4819/2007 (M/s Glorious Marbles (P) Ltd Vs. RFC & Ors) at principal Seat Jodhpur wherein co-ordinate Bench vide interim order dt.09/08/2007 (Ann.5) directed that principal borrower, if deposits Rs.17 lacks by 17/08/2007, the property of the petitioner (M/s Glorious Marbles) shall neither be auctioned nor alienated; and in view thereof, hypothecated goods could not have been put to auction.
In the reply filed by respondent-Bank, it has been inter-alia averred that after the decree having attained finality, execution proceedings were initiated and after the order dt.21/08/2008 passed by this Court finally disposing of CWP-5906/2008 (Smt. Bhavna Bapna & Ors Vs. OBC & Ors), since no efforts were made by the petitioner for disposal of hypotheticated goods referred to in order dt.21/08/2008 (supra) and since auction date was fixed by the Court, proceedings were accordingly initiated regarding mortgaged property of the guarantor. Counsel for respondent-Bank submits that even before the property was put to auction, registered notice dt.20/09/2008 (Ann.R. 1) was sent and after one month thereof, action was held on 20/10/2008, and that too in conformity of the order of this Court committing no error and in such circumstances, there is no justification to grant any discretion in favour of the petitioner.
Counsel further submits that if at all the petitioner is aggrieved by proceedings initiated by Recovery Officer (DRT), remedy of appeal U/s 30 of DRT Act has been provided which could be preferred before the Debts Recovery Tribunal and if at all incumbent is aggrieved by the order of the DRT, further appeal is provided before the Debts Recovery Appellate Tribunal U/s 20 of the Act, which the petitioner has failed to avail and in such circumstances, instant petitioner atleast is not maintainable.
Auction purchaser has also moved an application seeking permission for impleadment as party respondent and Counsel for applicant (respondent-4) submits that he being the highest bidder, respondent Bank has accepted his bid of Rs.24.10 lacs, which could not be confirmed because of the interim order of the Court and due to pending litigation, he has been deprived of the property put to auction.
This Court has considered rival contentions of the parties and with their assistance, examined the material on record. The order dt.21/08/2008 (supra) passed by co-ordinate Bench of this Court discloses that auction of the mortgaged property was to be notified and it was fixed for 20/10/2008.However, this Court granted liberty to the petitioner to approach the Bank with prospective buyers regarding hypotheticated goods and whatever sale consideration thereof is received, that could be directly paid to the Bank obviously against settlement of outstanding dues but from material on record, no prospective buyer came forward and no efforts were made by petitioner to bring prospective buyers for sale of the hypotheticated goods referred to in order dt.21/08/2008 (supra), but, before the auction could be held, registered notice dt.20/09/2008 (Ann.R.1) was sent to the petitioner but that was not responded and in these circumstances the respondent Bank was justified to go ahead in initiating auction proceedings held on 20/10/2008 but before the auction sale could be confirmed, interim order dt.11/12/2008 came to be passed and pursuant thereto, further proceedings were kept in abeyance.
Submission made by Counsel for petitioner about efforts being made vide letter dt.11/09/2008 (Ann.2) is of no substance for the reason that this Court granted liberty to the petitioner to bring any prospective buyers who could purchase hypotheticated goods and mere correspondence having been made could not have justified action/efforts if any made by the petitioner and indisputably the petitioner furnished certain names, but that could not be considered to be prospective buyers and apart from it, the matter having remained pending before this Court for last three years, but petitioner failed to bring prospective buyer for hypotheticated goods - in absence whereof, what has been contended on behalf of petitioner is nothing but a lame excuse and was able to achieve goal by deferring the auction for one reason or the other, which certainly has convinced the Court and interim order was granted on 12/09/2008 and the proceedings initiated by respondent Bank putting the mortgaged property to auction have been kept in abeyance by deferment of proceedings, three years have rolled by.
Submission made by Counsel for petitioner that the proceedings could not have initiated even for the disposal of the hypotheticated goods because of intervention made by co-ordinate Bench at principal seat Jodhpur vide order dt.9/08/2007 (Ann.5) in CWP-4819/2007 (supra) preferred at the behest of principal borrower, is also of no substance for the reason that after passing of interim order in the writ petition filed by principal borrower, joint petition (CWP-5906/2008) came to be filed before High Court at Jaipur Bench, in which principal borrower was also one of petitioners and he was aware of the fact about pending proceedings initiated by RFC and knowing it fully well it was not brought to the notice of the Court and that appears to be for the reason that proceedings initiated at the behest of RFC was independent and not related to the decree holder Bank and this Court is not examining the order dt.21/08/2008 and the only fact which requires to be considered is that if the Bank has proceeded in terms of order of the Court, grievance if any raised by petitioner, how far, it could be held to be justified. What has been urged by Counsel for petitioner appears to be a lame excuse obviously to defer the uction proceedings initiated by the Bank and in the opinion of this Court, the action of the Bank was in conformity of order of the Court dt.21/08/2008 (supra).
As regards submission made regarding objection which could be raised before Recovery Officer (DRT), the petitioner is always at liberty to avail if so advised.
Consequently, writ petition fails and is hereby dismissed. No costs.