Bombay High Court
Kiran P Chhajed, Prop. Of Suyash ... vs India Sme Asset Reconstruction ... on 8 March, 2022
Bench: Makarand Subhash Karnik
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1134 OF 2022
Kiran P. Chhajed, proprietor of
Suyash Properties ...Petitioner
V/s.
India SME Asset Reconstruction
Co. & Ors. ...Respondents
Mr. Pradeep Samant for the petitioner.
Mr. Vivek S. Sawant for respondent no. 1.
CORAM: DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE: MARCH 8, 2022
P.C.:
1. This writ petition is directed against the judgment and
order dated 26th July 2021 passed by the Presiding Officer,
Debts Recovery Tribunal - 1, Mumbai (hereafter "DRT-1", for
short) in Transfer Original Application No. 507 of 2016. The
operative part of the order reads as follows:
"(a) I allow the O.A. and direct the defendant nos. 1 to
4 to pay jointly and severally within a period of 30 days
to the applicant bank a sum of Rs.56,21,208.24/-
(Rupees Fifty-Six Lakh Twenty-One Thousand Two
Hundred Eight and Twenty-Four Paise only) towards term
loan facility with further interest @ 17.50% p.a. from the
date of filing of the Original Application till its realization.
(b) Failing which the aforesaid amount shall be
recovered from the properties which were mentioned in
the O.A. and also from the sale of asset of defendant
nos. 1 to 4.
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(c) Defendants are hereby directed not to deal with
their properties, till further direction of Ld. Recovery
Officer.
(d) The defendant nos. 1 to 4 also shall pay costs
incurred by the applicant bank in filing the present
Original Application including professional fees and other
expenses.
(e) The Recovery Certificate be issued forthwith and be
sent to the Recovery Officer, Mumbai of this Tribunal."
2. The petitioner, an auction purchaser of a property put up
for sale by the applicant before the DRT-1, was the
respondent no. 4 in Transfer Original Application No. 507 of
2016. Erroneously, the Presiding Officer has referred to the
petitioner (defendant no. 4) as a borrower who is liable to pay
along with the defendant nos. 1, 2 and 3 the sum as indicated
in paragraph (a) of the operative direction extracted above. In
terms of operative direction (b), the petitioner has also been
included along with the defendant nos. 1 to 3 from whom the
amount due is liable to be recovered if not paid within thirty
(30) days.
3. Mr. Vivek Sawant, learned advocate appearing for the
respondent no. 1 fairly concedes that reference to the
petitioner as one of the borrowers along with the defendant
nos. 1 to 3 by the Presiding Officer is erroneous. In fact, he
submits that an application has been filed by the respondent
no. 1 before the DRT-1 for rectification of the inappropriate
references to the defendant no. 4, i.e., the petitioner, as a
borrower. Such application is reportedly pending.
4. Be that as it may, it is also not in dispute that the
petitioner has moved the Debts Recovery Appellate Tribunal,
Mumbai (hereafter "DRAT, Mumbai", for short) challenging the
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self-same judgment and order dated 26th July 2021. Mr.
Pradeep Samant, learned advocate for the petitioner submits
that since there is a vacancy in the office of the Chairperson
of the DRAT, Mumbai, the petitioner had no other option but
to institute this writ petition on 23 rd December 2021, seeking
quashing of the impugned judgment and order as well as for
other reliefs.
5. In course of hearing of a different matter, we have been
informed that 20th March 2022 is the last date for Justice
Ashok Menon, former Judge of the Kerala High Court, to join
as the Chairperson of the DRAT, Mumbai. Having regard
thereto, we are not inclined to proceed with hearing of this
writ petition which is being pursued as a parallel remedy.
6. Mr. Pradeep Samant has contended that in view of the
predicament which the petitioner faces of having his assets
sold off, although he is an auction purchaser only and,
therefore, not liable for any sum payable to the respondent
no. 1, certain interim protection ought to be granted.
7. Having heard learned advocates for the parties, we
dispose of the writ petition granting liberty to the petitioner to
urge all points for having the judgment and order dated 26th
July 2021 set aside by the DRAT, Mumbai. No opinion is
expressed on merits and all contentions are left open.
8. However, till such time the Presiding Officer passes an
appropriate order on the application filed by the respondent
no. 1 or the DRAT, Mumbai passes an appropriate order in the
appeal filed by the petitioner, the operative directions
extracted above shall not be applicable qua the petitioner. It is
also directed that the property put up for sale and purchased
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by the petitioner shall not either be put up for sale once again
or be dealt with in any manner by the Recovery Officer till
such time the Presiding Officer, DRT-1/the Chairperson, DRAT,
Mumbai passes an appropriate order in that behalf in
proceedings initiated by the respondent no. 1 and the
petitioner, respectively, before them.
9. There shall be no order as to costs.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Digitally signed
by ATUL
ATUL GANESH
KULKARNI
GANESH Date:
KULKARNI 2022.03.09
10:47:52
+0530
