Bombay High Court
Bank Of Baroda vs Pratik Microsystem Pvt.Ltd. And Ors on 13 August, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:32674-DB
Digitally
signed by
SNEHA SNEHA
ABHAY DIXIT
ABHAY Date:
DIXIT 2024.08.14
19:43:15
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8132 OF 2007
Bank of Baroda, ]
Having H/O. at Mandvi, Vadodara ]
and Branch Office at Nashik City ] .. Petitioner
Versus
1. Pratik Microsystem Pvt. Ltd., Mumbai ]
2. Sriniwas Cotton Mills Ltd., Mumbai ]
3. Pratik Shashikant Lele, R/o. Nasik ]
4. Avinash Govind Kardile, R/o. Nasik ] .. Respondents
Mr. Rakesh Singh with Ms. Heena Shaikh, Advocates, i/by M.V. Kini & Co.,
for the Petitioner.
Mr. Ashok B. Tajane with Mr. Yogesh G. Thorat, Advocates for Respondent
Nos.1 to 3.
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 13TH AUGUST, 2024.
ORAL JUDGMENT : { Per A.S. Chandurkar, J. }
1. In this writ petition the petitioner - Bank of Baroda has challenged
the judgment dated 16th May 2007 passed by the learned Chairperson,
Debts Recovery Appellate Tribunal, Mumbai in Appeal No.61/2006. By the
said judgment, the appeal preferred by the Bank challenging the order
dated 17th January 2006 passed by the learned Presiding Officer, Debts
Recovery Tribunal-III, Mumbai came to be partly allowed and the Bank
was directed to refund the amount of Rs.1,00,000/- to the respondent
no.1-M/s. Pratik Microsystem Private Limited instead of Rs.1,60,709/-, as
directed by the Debts Recovery Tribunal.
11-WP-8132-2007.doc
Dixit
2. The facts in brief are that the respondent no.1-Company obtained
finance to the tune of Rs.4,25,000/- from the Bank in the year 1994.
Security was furnished towards the aforesaid loan. However, since the
Company failed to repay the amount as borrowed, the Bank preferred
Original Application No.167 of 2005 before the Debts Recovery Tribunal.
3. During pendency of the said proceedings before the Debts Recovery
Tribunal, one of the Directors of the Company intended to sell the
mortgaged property with a view to clear the dues of the Bank. Pursuant
thereto, the mortgaged property came to be sold for an amount of
Rs.30,00,000/-. Out of the sale proceeds, the Company paid an amount of
Rs.27,76,600/- to the Bank. It was however noticed that in the said
process, an amount of Rs.1,60,709/- was paid in excess by the Company
to the Bank. The Company therefore sought refund of the excess amount.
The learned Presiding Officer on 17 th January 2006 after going through
the extract of accounts filed by the Company found that the Bank had
recovered excess amount of Rs.2,00,252/- from the Company. Hence, the
Bank was permitted to withdraw the proceedings subject to refund of the
amount of Rs.1,60,709/- to the Company within fifteen days. Failure to
refund that amount was to be visited with payment of interest @ 18% p.a.
11-WP-8132-2007.doc
Dixit
4. The Bank being aggrieved by the aforesaid direction, preferred an
appeal being Appeal No.61 of 2006 before the Debts Recovery Appellate
Tribunal. The learned Chairperson found that the Original Application had
been filed on 20th April 2005 and the account was cleared on 20 th
September 2005. It was further found that besides the dues payable to the
Bank, an amount of Rs.2,00,252/- in excess of the original claim had been
paid. Exercising discretion in the matter of grant of interest pendente lite
@ 10% p.a., it was noted that this amount would come to Rs.1,07,000/-.
In this backdrop, the order passed by the Debts Recovery Tribunal was
modified and the Bank was directed to refund a sum of Rs.1,00,000/-
instead of Rs.1,60,709/- to the Company within two weeks. In case of
default, the amount was to be paid with interest @18% p.a.
5. Mr. Rakesh Singh, the learned counsel for the Bank submitted that
the Debts Recovery Tribunal as well as the Debts Recovery Appellate
Tribunal were not justified in directing refund of the excess amount to be
paid to the Company. On satisfaction of its dues, the Bank was entitled to
withdraw the proceedings and if at all the Company intended to recover
any excess amount paid, it ought to have initiated appropriate
proceedings. Without assigning any reason, the Debts Recovery Tribunal
directed refund of amount of Rs.1,60,709/-. The Debts Recovery Appellate
Tribunal instead of setting aside that order merely reduced the said
11-WP-8132-2007.doc
Dixit
amount to Rs.1,00,000/-. There was no justification whatsoever to direct
refund of the aforesaid amount in absence of any legal basis for the same.
The amount involved being public money, the direction issued by the
Debts Recovery Appellate Tribunal was liable to be set aside.
6. On the other hand Mr. Ashok B. Tajane, the learned counsel
appearing for the Company as well as it's Directors tendered affidavit
dated 12th August 2024 executed by the respondent no.3 in his capacity as
Director of the Company. It is taken on record and marked "A" for
identification. According to him, the Company came to be dissolved on
24th April 2011 and it's name was struck-off from the Registrar of
Companies. The respondent nos.3 and 4 were the only Directors of the
Company and they had executed a Declaration undertaking the
responsibility of the Company.
. Supporting the order passed by the Debts Recovery Tribunal, as
modified by the Debts Recovery Appellate Tribunal, he submitted that,
undisputedly, excess payment was paid to the Bank over and above the
sum due. The refund, as directed, was justified and the Bank would not be
entitled to retain the excess amount. The Debts Recovery Appellate
Tribunal reduced the amount to be refunded from Rs.1,60,709/- to
Rs.1,00,000/- but the Company had not challenged that order. Since the
dues of the Bank were cleared during pendency of the proceedings, the
11-WP-8132-2007.doc
Dixit
refund was rightly directed. Hence, there was no reason to interfere with
the impugned judgment.
7. Having heard the learned counsel for the parties and having perused
the documents on record, we do not find any reason whatsoever to
interfere with the impugned judgment dated 16 th May 2007. It is not in
dispute that pursuant to the Bank filing Original Application No.167 of
2005 on 20th April 2005, the property of the Company that was mortgaged
by way of security came to be sold for an amount of Rs.30,00,000/-. The
dues of the Bank were to the extent of Rs.25,57,456.02. However, the
amount paid to the Bank was Rs.27,76,600/-. In this backdrop the
Company sought refund of Rs.1,60,709/- that was paid in excess. Though
the learned Presiding Officer directed refund of the said amount, the
learned Chairperson, Debts Recovery Appellate Tribunal in exercise of
discretion reduced the amount to be refunded to Rs.1,00,000/-. In the
process the Bank received Rs.60,709/- towards interest @ 10% p.a. for the
period of five months from the date of filing of the proceedings till
recovery of the said amount.
. In aforesaid facts, we do not find any fault with the direction as
issued by the Debts Recovery Tribunal. It is not the case of the Bank that it
has not received all its dues. The amount directed to be refunded is over
and above the amount that the Bank was entitled to receive. It's interest
11-WP-8132-2007.doc
Dixit
has been taken care of by awarding a sum of Rs.60,709/- as interest
pendente lite. There is no justification either in law or in equity for the
Bank to continue to withhold the amount of Rs.1,00,000/- that was
admittedly paid in excess. Requiring the Company to again file separate
proceedings for recovery of this amount would have resulted only in
multiplicity of proceedings leading to the same result, namely refund of
the excess amount received by the Bank.
8. In that view of the matter, there is no case made out to interfere in
exercise of writ jurisdiction. The writ petition stands dismissed. The
amount due and payable to the Company shall be paid in equal proportion
to respondent nos.3 and 4 in view of the affidavit dated 12 th August 2024.
The Declaration executed by the said respondents, which is part of their
affidavit is taken as an undertaking to the Court.
9. Rule stands discharged with no order as to costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
11-WP-8132-2007.doc
Dixit
