Delhi High Court
Icici Bank Ltd vs Arun Kumar & Anr on 10 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: February 10, 2017
+ W.P.(C) 9232/2016
M/S ICICI BANK LIMITED ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
GURVINDER SINGH BHANDAL ..... Respondent
Through None
+ W.P.(C) 9236/2016
ICICI BANK LTD ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
ARUN KUMAR & ANR ..... Respondents
Through None
+ W.P.(C) 9240/2016
ICICI BANK LTD ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
SHIV PAL SINGH CHAUDHARY ..... Respondent
Through None
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
Page 1 of 9
+ W.P.(C) 9245/2016
M/S ICICI BANK LIMITED ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
ASHOK SHARMA ..... Respondent
Through None
+ W.P.(C) 9246/2016
M/S ICICI BANK LIMITED ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
BALJINDER SINGH ..... Respondent
Through None
+ W.P.(C) 9256/2016
ICICI BANK LTD ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
PANKAJ GARG ..... Respondent
Through None
+ W.P.(C) 9258/2016
ICICI BANK LTD ..... Petitioner
Through Ms. Chetna Bhalla, Advocate.
versus
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
Page 2 of 9
MAINAWATI ..... Respondent
Through None
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA
JUDGMENT
INDIRA BANERJEE, J (ORAL)
1. In all these writ petitions, the petitioner, ICICI Bank Limited
has challenged orders of the Debt Recovery Appellate Tribunal
dismissing the appeals filed by the petitioner against orders of
the Debt Recovery Tribunal-1 Chandigarh, whereby the prayer
of the petitioner for ex parte appointment of Receivers was
declined, and notices were directed to be issued to the
respective respondents.
2. The issues in all the writ petitions being identical, the same
were heard together, and are now being disposed of by this
common judgement and order.
3. The respondents in the writ petition approached the petitioner
for finance for purchase of vehicles, particulars whereof have
been given in the writ petitions. The respondents were advanced
loans to purchase the vehicles on terms and conditions specified
in the loan agreements.
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
4. In terms of the loan agreements, the respondents were required
to repay the loans in monthly instalments, as specified in the
loan agreements. The respondents paid some monthly
instalments, but thereafter committed defaults in payment of
monthly instalments.
5. By way of security for the finance advanced by the petitioner,
to the respondents, the respondents hypothecated their
respective vehicles to the petitioner. The petitioner claims that
in terms of the loan/hypothecation agreements, the petitioner
had the right to take possession of the vehicles in default of
payment of instalments, sell the same, and realise the proceeds
thereof towards pro tanto satisfaction of its dues from the
respondents.
6. The petitioner filed applications before the Debt Recovery
Tribunal Chandigarh, for immediate ex parte appointment of
Receivers to take possession of vehicles, hypothecated to the
petitioner, in respect of which the petitioner had committed
defaults in payment of instalments.
7. The learned Tribunal declined to entertain the application of the
petitioners ex parte. The learned Tribunal directed that
summons and/or notices be issued to the respondents. The
petitioner contends that the petitioner was entitled to ex parte
orders of appointment of a Receiver.
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
8. Being aggrieved by the refusal of the learned Tribunal to
appoint Receivers over the vehicles ex parte, the petitioner
appealed to the Learned Debt Recovery Appellate Tribunal,
Delhi, hereinafter referred to as the learned Appellate Tribunal.
Before the learned Appellate Tribunal, the petitioner prayed
that instead of practising Advocates, an officer of the petitioner
be appointed Receiver over the vehicles to save public money.
9. By the orders impugned in these writ petitions, the appeals have
been dismissed. The learned Appellate Tribunal was of the
view that there did not appear to be any urgency in the matter of
appointment of a Receiver and that too by an ex parte order.
10. The learned Appellate Tribunal perused the hypothecation
deeds and found that they were blank documents, which did not
contain any particulars of the hypothecated vehicles. The
relevant columns had not been filled up. The Appellate
Tribunal found that there were no documents to show, even
prima facie that the specific vehicles were in fact hypothecated
by the borrowers to the applicant Bank. The learned Appellate
Tribunal also arrived at the prima facie view that the borrowers
were not total defaulters in payment of instalments. The learned
Appellate Tribunal, therefore, declined the ex parte prayer for
appointment of Receiver.
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
11. The operative part of one of the identical impugned orders of
the learned Appellate Tribunal is extracted herein below:-
"In the aforesaid scenario, I am of the view that
the appellant cannot be said to have made out a
strong prima facie case for the appointment of a
Receiver by ex parte order. However, in case the
borrower enters appearance before the DRT and
the matter is heard in detail, the bank can always
explain the aforesaid deficiencies highlighted by
this Tribunal and then the DRT would be at liberty
to take any decision in accordance with law.
This appeal is accordingly dismissed with costs of
Rs.10,000/- to be deposited with DRT Bar
Association, Chandigarh to be utilized for its
needy members. The costs shall be deposited
within 10 days and the concerned Bar Association,
shall be informed by the Registry about this
direction. In case of default, the said Bar
Association can take appropriate steps for the
recovery of the costs imposed upon the appellant
bank.
12. The question is whether this Court, exercising jurisdiction
under Article 226 of the Constitution of India, can sit in appeal
over the decision of the learned Appellate Tribunal or in 2 nd
appeal against the decision of the Debt Recovery Tribunal. The
answer to the aforesaid questions has to be in the negative.
13. The petitioner may be entitled to appointment of a Receiver,
considering that the vehicles are hypothecated to the petitioner
and that instalments payable by the respondents to the petitioner
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
are outstanding. Prima facie, the loan agreements, entitle the
petitioner to take possession of the hypothecated assets. If the
vehicles continue to remain in the hands of the respondents,
there would be depreciation and fall in the value thereof. The
vehicles would also be exposed to the risk of accidents etc.
which might diminish the value of the vehicles altogether.
14. The learned Appellate Tribunal has only declined the prayer of
the petitioner for appointment of Receivers at the ex parte stage.
The relief prayed for by the petitioner has not been turned
down.
15. Furthermore, a Receiver is an indifferent, impartial person,
appointed by the Court, to receive and preserve the property in
litigation pendente lite, when it does not seem reasonable to the
Court that either party should hold the property. A Receiver is
regarded as an officer of the Court, exercising functions in the
interest neither of the plaintiff, nor the defendant but for the
common benefit of all interested parties. A Receiver is
frequently spoken of as "friend of the court".
16. Even though, the petitioner may have had a right to
appointment of Receiver, the petitioner had no right to insist on
appointment of officers and/or representatives of the applicant
bank as Receivers. The choice of Receiver would have to be left
to the Court/Tribunal.
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
17. The only respondents in the respective writ petitions are the
individual borrowers, who are neither state nor authorities
amenable to the writ jurisdiction of this court, under Article 226
of the Constitution of India.
18. The Registrar, Debts Recovery Tribunal-I, Chandigarh and the
Registrar, Debts Recovery Appellate Tribunal, Delhi are
impleaded respondents. The memorandum of parties be
amended and a fresh memorandum of parties be filed.
However, no notice need to be issued to the said respondents.
19. There is, however, no such patent illegality in the impugned
orders, that calls for interference by this Court, exercising
jurisdiction under article 226 of the Constitution of India.
20. Prima facie, the findings arrived at by the learned Appellate
Tribunal, on the basis of the materials on record before it, do
not call for interference under Article 226 of the Constitution of
India. The learned Appellate Tribunal has protected the right of
the petitioner to pursue its applications before the Debt
Recovery Tribunal after issuance of notices.
21. Notices of the applications of the applicant bank must have
been served on the respondents by now. The petitioners are
remanded to the Debts Recovery Tribunal. If the respondents
do not appear in spite of the notice, the applications for interim
relief may be disposed of in their absence, since the same
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
cannot be kept in abeyance indefinitely. There has to be
adjudication. The petitioners are remitted to back to the Debts
Recovery Tribunal-I, Chandigarh.
22. The imposition of costs on the petitioner is unfair and uncalled
for since a strong prima facie case of default by the respondents
in repayment of loans advanced for purchase of vehicles, which
are hypothecated to the petitioner by way of security. The
petitioner prima facie has the right to take possession of the
hypothecated vehicles. The costs imposed by the learned
Appellate Tribunal are, therefore, set aside.
23. The writ petitions are thus disposed of.
INDIRA BANERJEE, J
ANIL KUMAR CHAWLA, J
February 10, 2017/ n
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W.P.(C) Nos. 9232/2016, 9236/2016, 9240/2016, 9245/2016, 9246/2016, 9256/2016 and 9258/2016
