Vinod Kumar Jaiswal vs Authorised Officer, S.B.I. and Others

Hon''ble Sudhir Agarwal, J.—Heard Sri D.P. Shukla, learned counsel for the petitioner at length and perused the record.

This writ petition is directed against the order dated 15.09.2011 passed by Debt Recovery Appellate Tribunal, Allahabad (hereinafter referred to as the "Appellate Tribunal") disposing of petitioner''s Appeal No. R120/ 11 directing that the auction conducted by Bank shall be subject to final outcome of securitization application.

It appears that Bank proceeded to auction certain property and issued a sale notice/auction notice on 24.04.2011. Whereafter petitioner filed Appeal No. 122 of 2011 u/s 17(1) of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the "Act, 2002") seeking following reliefs:

Relief sought:In view of the fact and the law involve in the case Hon''ble tribunal may be pleased set aside/quase the auction/sale notice dated 24.4.11 as shown in serial no. 12 House no. 149/296A Part of Old no. 149 Bia Ka Bagh Allahabad of the New Papers Dainik Jagran in which sale would be finalized on 27.5.11 by the authorised officer State Bank of India Sarb Allahabad. And pass any other or further order which may be deem fit and proper in favour of appellant. Otherwise he will suffer loss and injury.

In the aforesaid appeal petitioner has impleaded Authorised Officer, State Bank of India, Allahabad and one Manish Kumar Srivastava son of Jamuna Prasad Srivastava as respondents. Sri Manish Kumar Srivastava said to have obtained a sale deed dated 30.04.1962 fraudulently which was allegedly executed in favour of petitioner''s father. The property was sold on 27.05.2011 for a sum of Rs. 35,51,000/and confirmed on 11.06.2011 in favour of one Sri Neeraj Kumar son of Sri Raj Kishore Jaiswal, resident of 161/17 Katghar, Allahabad. The aforesaid auction purchaser was not impleaded in the pending appeal. The Debts Recovery Tribunal (hereinafter referred to as the "Tribunal") rejected prayer for interim relief vide order dated 26.08.2011 observing that petitioner has failed to show a prima facie case in his favour and has also not impleaded the auction purchaser in whose absence a relief of dispossession from property in dispute cannot be granted.

The petitioner preferred an appeal against this order before Appellate Tribunal seeking following reliefs:

A. In view of the facts and law involve in the case Hon''ble tribunal may be pleased to set aside the order dated 26.8.2011 passed in S.A. 122/11 Vinod Kumar Jaiswal Vs. Authorised Officer and others and mean time pass the order of status quo over the House number 149/126A, situated at Bai Ka Bagh, Allahabad and further be pleased to direct the respondent bank as well as other related person to not change nature and transfer the property in dispute otherwise appellant shall suffer irreparable loss.

B. To pass appropriate order direction the presiding officer D.R.T. Allahabad to decide the matter as early as possible in the provision of Law.

C. Award the cost.

This appeal has been disposed of finally by Appellate Tribunal by impugned order.

It is not in dispute that though the appeal before Tribunal was filed before auction could take place but the difference of period between two namely, the date of filing of appeal and auction held is just about twelve days. In the entire writ petition it is not the case of petitioner that he was not aware of the details of auction purchaser and no reason has been assigned in the entire writ petition why he could not have been impleaded in pending appeal before Tribunal. The auction having already been held and the same was confirmed, in absence of any consequential amendment in the appeal before Tribunal, I do not find any error in the orders passed by courts below on petitioner''s appeal.

Reliance is placed on a decision of Bombay High Court in Manoj D. Kapasi and another Vs. Union of India and others, 2005 (2) Banker''s Journal 593 wherein the Hon''ble Court held that notice under Rule 8(6) for thirty days is mandatory. The aforesaid judgement has to be considered by Tribunal with respect to merits of pending appeal and, therefore, is not to be discussed at this stage and for the purpose of interim relief does not help the petitioner in view of facts and circumstances of this case as discussed above.

Another decision cited is Hutchison Essar South Ltd. Vs. Union of India and another, AIR 2008 Karn 14, which in my view has no application to the facts of this case. This judgment has discussed that for the purpose of attracting Section 17 it is not necessary that secured creditor must take actual possession of secured property but symbolic possession is sufficient.

The last is Apex Court''s decision in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. 2004 (5) ALLMR 396. This judgment deals with peculiar facts of this case and again has no application in the present case. Moreover, the matter was taken to the Court after the final order was passed in appeal filed before Tribunal and did not deal with the situation arising out of application for interim relief.

Lastly, it is contended that petitioner''s appeal is pending before Tribunal for the last six months and, therefore, in all fairness the Tribunal be directed to decide the same within a specified time.

Sri Ambrish Sahai, Advocate is appearing on behalf of respondent no. 1. Obviously he has no reason to raise any objection for early disposal of appeal pending before Tribunal.

In the circumstances, the Debt Recovery Tribunal is directed to decide Appeal No. 122 of 2011, Vinod Kumar Jaiswal Vs. Authorised Officer, State Bank of India and another expeditiously and in any case within a period of two months from the date of production of a certified copy of this order, subject to other business of the court.

With the aforesaid observations/directions, this writ petition is dismissed.