Bombay High Court
Prime Downtown Estates Pvt Ltd vs Omkara Assets Reconstruction Company ... on 23 January, 2025
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
Digitally
signed by
2025:BHC-OS:1186
SNEHA
SNEHA ABHAY
ABHAY DIXIT
DIXIT Date:
2025.01.27
18:34:08
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.2373 OF 2025
Prime Downtown Estates Pvt. Ltd., ]
Having registered office at Gamdevi, ]
Hughes Road, Mumbai - 400 007. ] .. Petitioner
Versus
1. Omkara Assets Reconstruction Company ]
Pvt. Ltd., Tirupur - 641 607 ]
2. Authorized Officer, ]
Omkara Assets Reconstruction Company ]
Pvt. Ltd., Tirupur - 641 607 ]
3. JC Flowers Asset Reconstruction Pvt. Ltd., ]
Worli, Mumbai - 400 030 ]
4. Yes Bank Ltd., ]
Elphinstone (West), Mumbai - 400 013 ]
5. E-Commerce Magnum Solutions Ltd., ]
Through Resolution Professional : ]
Pankaj Ramandas Majithia, ]
BKC Complex, Bandra (East) Mumbai - 400 051 ]
6. Radius Infraholdings Pvt. Ltd., ]
BKC Complex, Bandra (East), Mumbai - 400 051 ]
7. Sanjay Chabaria. ]
Director (now suspended) of the E-Commerce ]
Magnum Solutions Ltd., ]
R/of Santacruz (West), Mumbai - 400 054 ]
8. Vyomesh Shah, ]
R/of Walkeshwar, Malabar Hill, Mumbai - 400 006 ] .. Respondents
Mr. Nitin Thakkar, Senior Advocate, with Mr. Nishit Dhruva, Mr. Prashansh
Agarwal and Mr. Bhavesh Poojari, Advocates, i/by MDP Legal, for the
Petitioner.
Mr. Kunal Kanungo, Advocate for Respondent No.1.
Mr. Ayush Rajani with Ms. Khushboo Shah, Advocates for Respondent
No.5.
1/6
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::: Uploaded on - 27/01/2025 ::: Downloaded on - 01/02/2025 09:38:06 :::
CORAM : A.S. CHANDURKAR &
M.M. SATHAYE, JJ
DATE : 23RD JANUARY 2025.
ORAL JUDGMENT : ( Per A.S. Chandurkar, J. )
1. Rule. Rule made returnable forthwith and heard learned counsel for
the parties. The challenge raised in this writ petition is to the order dated
16th January 2025 passed by the learned Presiding Officer, Debts Recovery
Tribunal-II on Interim Application No.3 of 2025 in Securitization
Application No.2 of 2025.
2. At the outset, the learned Senior Advocate for the petitioner submits
that remedy of filing an appeal before the Debts Recovery Appellate
Tribunal is available to the petitioner. However, on the ground that the
learned Presiding Officer has passed an unreasoned order despite various
contentions raised by the petitioner and replied by the respondents, the
petitioner has invoked the extra-ordinary jurisdiction of this Court.
3. Briefly stated; in the proceedings initiated by the petitioner, being
Securitization Application No.46 of 2021, an order dated 22 nd July 2021
came to be passed on Interlocutory Application Nos.429 of 2021 and 578
of 2021. By a reasoned order, the learned Presiding Officer, Debts
Recovery Tribunal-II refused to grant any relief to the petitioner. Being
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aggrieved, the petitioner has filed Miscellaneous Appeal No.40 of 2022
before the Debts Recovery Appellate Tribunal. The petitioner has been
heard on the application for "Waiver of Deposit" and the order on the said
application was scheduled to be passed on 21 st January 2025. The
proceedings were thereafter adjourned to 30th January 2025. In the
meanwhile, on 19th December 2024, a notice proposing to auction the
secured asset came to be issued on behalf of the respondent no.1. The
petitioner therefore filed Interim Application No.3 of 2025 before the
Debts Recovery Tribunal-II praying that the said e-auction notice be
quashed. A reply was filed to the aforesaid interim application and on 16 th
January 2025, the learned Presiding Officer passed an order merely
observing that as no new circumstances had arisen since the earlier order
dated 22nd July 2021 was passed, it was not a fit case for grant of relief
with regard to the Term Loan-II.
4. Mr. Nitin Thakkar, the learned Senior Advocate for the petitioner
submits that various contentions were raised in support of the prayer for
interim relief before the learned Presiding Officer. Issuance of the e-
auction notice on 19th December 2024 was in fact a new circumstance
giving rise to the said interim application. However without considering
any contention and merely by referring to an earlier order passed on 22 nd
July 2021, the interim application came to be rejected. Since the
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impugned order was unreasoned, it amounted to breach of principles of
natural justice. Hence it was submitted that this Court may interfere in
exercise of its extra-ordinary jurisdiction.
5. Mr. Kunal Kanungo, the learned counsel for the respondent no.1
does not dispute the fact that the contentions raised by the petitioner in
support of the prayers made in the interim application had been replied by
the respondent no.1 by relying upon various documents. He fairly submits
that consideration of these contentions is absent in the impugned order.
He however submits that merely on this count, no interference may be
caused as an alternate remedy of filing an appeal is available.
6. Having heard the learned counsel for the parties and having perused
the order dated 22nd July 2021 passed by the learned Presiding Officer, the
e-auction notice dated 19th December 2024 as well as the contents of
Interim Application No.3 of 2025, we are satisfied that the said interim
application has been rejected without assigning any reason in support of
the said conclusion. Issuance of an e-auction notice dated 19 th December
2024 is definitely a new circumstance that gives a cause to the petitioner
to seek interim relief. It is a different issue whether interim relief deserves
to be granted or not and this conclusion can be drawn only after
considering all submissions in favour of and against the prayer for interim
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relief. Perusal of the impugned order indicates that except for stating that
no new circumstance had arisen after 22 nd July 2021 and that the
proceedings before the Debts Recovery Appellate Tribunal were fixed on
21st January 2025, the prayer for interim relief was rejected and the
interim application was also disposed of. In absence of consideration of
any of the contentions raised and thereafter replied to, the impugned
order cannot be supported.
7. It is well settled that availability of an alternate remedy by itself is
not a bar for this Court to exercise extra-ordinary jurisdiction if it is
satisfied that there has been a breach of principles of natural justice which
result in miscarriage of justice. The present is a case where an unreasoned
order has been passed without dealing with the contentions in favour of
and against the prayer for interim relief. The impugned order does cause
legal prejudice to the petitioner in view of issuance of the e-auction notice.
We therefore find that this is a fit case for this Court to interfere under
Article 226 of the Constitution of India.
8. For aforesaid reasons, the following order is passed :-
(a) The order dated 16th January 2025 passed by the
learned Presiding Officer, Debts Recovery Tribunal-II
on Interim Application No.3 of 2025 is quashed and
set aside.
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(b) The proceedings are remitted before the Debts
Recovery Tribunal-II to enable the learned Presiding
Officer to re-consider Interim Application No.3 of
2025 on its own merits and in accordance with law.
(c) The affidavit-in-reply to Interim Application No.3 of
2025 shall be filed within a period of one week from
today.
(d) The prayer for interim relief be considered by the
learned Presiding Officer, Debts Recovery Tribunal-II
within a period of two weeks of receiving copy of this
judgment.
(e) Till the prayer for interim relief is considered and
decided, no precipitative steps be taken by the
respondents in the matter. It is however clarified that
this Court has not examined the merits of the rival
contentions and this direction is issued only to ensure
that the position as prevailing today operates till the
prayer for interim relief is considered and decided. All
contentions of parties on merit are kept expressly
open.
9. Rule is made absolute in aforesaid terms with no order as to costs.
[ M.M. SATHAYE, J. ] [ A.S. CHANDURKAR, J. ]
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