Delhi High Court
M/S Infinity Sez Private Ltd. vs I.F.C.I. And Ors. on 17 July, 2014
$~6.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO.13923/2009
Date of decision: 17th July, 2014
M/S INFINITY SEZ PRIVATE LTD.
..... Petitioner
Through Mr. Sudhir Nandrajog, Sr. Advocate
with Mr. Gaurav Sarin, Mr. Srinivas Kotni, Mr.
Mukul Chandra, Mr. Amit Vaswani & Mr. Ajay
Yadav, Advocates.
versus
I.F.C.I. AND ORS.
..... Respondents
Through Mr. Karan Dev, Advocate for Mr.
Suresh Dutt Dobhal, Advocate for respondent
No. 1-IFCI.
Mr. Kirti Uppal, Sr. Advocate with Mr. Pushkar
Sood, Advocate for respondent No. 2.
Mr. Anshuman Sood & Mr. Dharmender Sharma,
Advocates for respondent No. 3.
Mr. P.K. Mullick, Advocate for respondent No.
4.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE V. KAMESWAR RAO
SANJIV KHANNA, J. (ORAL):
After some hearing, learned counsel for the petitioner on instructions
states:
(i) The issue and question relating to Rs.1.70 crores deposited in the
'No Lien Account' will be raised before the Debt Recovery Tribunal under
the provisions of Recovery of Debts Due to Banks and Financial
W.P. (C) No. 13923/2009 Page 1 of 6
Institutions Act, 1993.
(ii) The respondent-IFCI has filed an undertaking in terms of order
dated 17th December, 2009 and the same should continue till the issue in
respect of 'No Lien Account' is decided or disposed of by the Debt
Recovery Tribunal.
(iii) Directions may be issued for expeditious hearing and disposal of
the matter as the deposits in question were made in the year 2008.
(iv) The borrower, i.e., AEC SSangyong Limited has made a one-
time proposal for settlement and the petitioner has strong objection to the
adjustment of 'No Lien Account'. The petitioner should be permitted and
allowed to raise objections before the authority/Presiding Officer
considering the said proposal.
2. The present writ petition was filed in 2009 as the Recovery Officer
without deciding objections raised by the petitioner had directed auction of
land measuring 30.05 acres in survey Nos. 210, 241, 241/1 to 3, 242/2 and
243 (New comprehensive survey No.210) situated at Dhodipada-Morkhal
Road, village Morkhal, Silvassa, Dadra and Nagar Haveli. This is clear
from the writ petition itself wherein in paragraph 27, the petitioner has
precisely and affirmatively stated their grievance; that they were aggrieved
by the impugned continuing inaction of the Recovery Officer or failure to
decide their objection, and at the same time the property had been put to
auction. The petitioner claims that they had earlier deposited Rs.1.70
crores in a 'No Lien Account' and have set out facts in paragraphs 4 to 20
W.P. (C) No. 13923/2009 Page 2 of 6
of the writ petition. It is averred that this amount should be refunded to
them as the land has not been sold/transferred to them. We only record
that there may be disputed questions of fact and the respondents have
contested the aforesaid assertions made in paragraphs 4 to 20 by the
petitioner. It is one of the reasons why we feel that it would not be
appropriate to decide the question of refund etc. in this petition.
3. By order dated 17th December, 2009, the Court had issued notice and
had passed an interim order permitting auction of the land but recorded that
in case the auction fructifies into sale, the amount received would be
appropriated by IFCI but they shall file an undertaking that in case the
petition is decided in favour of the writ petitioner, refund would be directed
and amount of Rs.1.3 crores along with interest would be refunded.
4. It so transpires that this auction was held but the sale certificate has
not been issued as stay has been granted by Debt Recovery Appellate
Tribunal. In the meanwhile, the borrower M/s AEC Ssangyong Limited
had submitted a proposal, which has been approved by IFCI and Bank of
India. It is pointed out that as per the one time settlement proposal, Rs.1.70
cores paid by the petitioner is be appropriated by the banks against the dues
of the borrower.
5. During the course of hearing, it has also been brought to our notice
that the Recovery Officer by order dated 16th December, 2009 had
dismissed the objections filed by the petitioner herein recording that this
was an internal arrangement between the objector and the borrower.
W.P. (C) No. 13923/2009 Page 3 of 6
However, the objector, i.e., the present petitioner was given liberty to
participate in the auction sale. The petitioner herein has not impugned this
order before us by amending the writ petition. It is stated that this was
because of the pendency of present writ petition and orders passed
including order dated 17th December, 2009. Thus no appeal has been
preferred against order dated 16th December, 2009 before the Presiding
Officer, Debt Recovery Tribunal.
6. IFCI in their counter affidavit have taken a preliminary objection
that the petition is not maintainable as the petitioner has alternative and
equally efficacious remedy by way of an appeal under Section 30 of the
Act. Learned counsel appearing for Bank of India has relied upon two
decisions of the Supreme Court in United Bank of India versus Satyawati
Tondon and Others, (2010) 8 SCC 110 and Kanaiyalal Lalchand Sachdev
and Others versus State of Maharashtra and Others, (2011) 2 SCC 782
and submits that it would be just and appropriate if the petitioner exercises
their right to appeal under the Act.
7. As noticed above, the present writ petition has remained pending in
this Court since 17th December, 2009. From time to time various orders
have been passed. Subsequent developments have been noticed. Keeping
in view the aforesaid factual position, learned counsel for the petitioner has
given concessions, which we have recorded in paragraph 1 above. In view
of the aforesaid position and looking at the fact that the petitioner has been
bona fidely pressing and prosecuting the proceedings in this Court, the
W.P. (C) No. 13923/2009 Page 4 of 6
present writ petition is being disposed of giving the following directions:
(i) The petitioner may file an appeal against the order dated 16th
December, 2009 before the Presiding Officer, Debt Recovery
Tribunal and in case any appeal is filed within a period of 30 days
from today, it will not be dismissed on the ground of limitation.
(ii) The undertaking given by IFCI will continue till the disposal of the
appeal by the Presiding Officer, Debt Recovery Tribunal. However,
Presiding Officer, Debt Recovery Tribunal will be entitled to
modify, amend or vacate the aforesaid direction in case any party is
at default or delaying the proceedings.
(iii) It will be open to the petitioner to file objections against the OTS
before the Presiding Officer, Debt Recovery Tribunal and it will be
open to the respondents to point out that the said objections are not
maintainable on merits and/or are not justified. Objection, if filed,
will be dealt with in accordance with law.
(iv) As there is urgency and the disputes have remained subjudice for
long, Presiding Officer, Debt Recovery Tribunal will try and dispose
of the appeal, objection and proceedings expeditiously and
preferably within a period of six months from the date the appeal is
filed.
(v) Parties aggrieved by any order would be entitled to challenge the
same in accordance with law.
8. We clarify that we have not expressed any opinion on merits, which
W.P. (C) No. 13923/2009 Page 5 of 6
will adversely affect the parties in the appeal or proceedings before the
Debt Recovery Tribunal and other authorities.
The writ petition is disposed of.
Copy of this order be given dasti to the learned counsel for the
parties under signature of the Court Master.
SANJIV KHANNA, J.
V. KAMESWAR RAO, J.
JULY 17, 2014
VKR
