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Judgment
Heard learned counsel for the petitioner and Sri Vinay Shanker learned counsel for the respondents-bank.
On account of default of payment of dues to the respondents-bank, recovery proceeding was initiated.
Feeling aggrieved, the petitioner had earlier filed a writ petition No. 8870 (M/B) of 2011, which was finally disposed of by a judgment and order dated 08.09.2011. The operative portion of the judgment is reproduced as under:
Keeping in view the fact that the petitioner has an alternative remedy, liberty is given to the petitioner to approach Debts Recovery Tribunal within a week from today and the Tribunal may pass appropriate order on the Stay application within next two weeks. However, we provide that the auction may take place but sale shall not be confirmed with regard to petitioner and in case the petitioner or the actual borrower deposit the entire dues in pursuance to the auction and sale proceedings, the respondents shall not proceed to confirm the sale. Subject to aforesaid direction, the writ petition is disposed finally.
It has been submitted by the counsel for the petitioner that before the Tribunal take-up the matter with regard to dispute in pursuance to the order passed by this Court, the respondents-bank proceeded with the auction and sale of the property and even sale has been confirmed. However, Sri Vinay Shanker, learned counsel for the respondents-bank submits that the sale has not been confirmed till date and only 25% amount has been deposited by the auction purchaser.
However, learned counsel for the petitioner asserted that the respondents had proceeded in violation of the judgment and order dated 08.09.2011(supra).
During the course of hearing, we have been informed that before the Tribunal, the case has been fixed for 24.10.2011. In case, the judgment of this Court has been violated on any ground whatsoever, then it shall be incumbent upon the Tribunal to look into the matter and ensure that judicial process has not been frustrated because of inaction of the respondents. Reliance has been heavily placed by the petitioner to a judgment of the Hon''ble Apex Court in the case of Mardia Chemicals Ltd. Vs. Union of India (UOI) and Others Etc. Etc.,
The Hon''ble Apex Court in the case of Mardia Chemicals (supra) ruled that the borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence the deficiencies on the part of the banks and financial institutions. The observations made by the Hon''ble Supreme Court is binding on the Tribunal as well as on this Court.
So far as petitioner''s right of judicial review under Article 226 of the Constitution of India is concerned, prima-facie, it seems to be not available at this stage.
Keeping in view the fact that the matter is subjudice before the statutory body i.e. Debts Recovery Tribunal and Debts Recovery Tribunal has got ample power to impart justice keeping in view the judgment of the Hon''ble Supreme Court in the case of Mardia Chemicals (supra).
Accordingly, we dispose of the writ petition finally directing the Tribunal to decide the stay application on 24.10.2011 itself or alternatively decide the petition on merit within four weeks from the date of service of a certified copy of the present order. While adjudicating the controversy, the Tribunal shall also record a finding that whether the judgment of this Court has been violated by the respondents-bank or not.
Subject to above, the writ petition is disposed of finally.
Let a copy of this order be provided to the parties'' counsel today itself, on payment of usual charges.