Indian Bank Through Authorised ... vs M/S Siddhi Vinayak Logistic Ltd. ...
2021 Latest Caselaw 4929 Guj

         C/SCA/5679/2021                                       ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 5679 of 2021

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            INDIAN BANK THROUGH AUTHORISED OFFICER
                              Versus
              M/S SIDDHI VINAYAK LOGISTIC LTD. (SVLL)
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Appearance:
RITESH D PATADIA(6460) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
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 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                             Date : 31/03/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Mr.Ritesh Patadia for the petitioner Bank.

2. The Debt Recovery Tribunal­II, Ahmedabad, while allowing the Original Application No.515 of 2017 by judgment and order dated 4/5.3.2020, directed the petitioner Bank to deposit the cost of Rs.5,00,000/­ with the National Defence Fund and further directed that the Recovery Officer shall proceed further after the deposit of the cost.

3. It is this aforesaid part order which is brought under challenge by filing the present petition invoking writ jurisdiction of this Court.

4. It could be submitted by learned advocate for the petitioner

C/SCA/5679/2021 ORDER

that though the petitioner Bank has succeeded in its Recovery Application, the aforesaid cost, otherwise very exorbitant has been imposed.

4.1 Learned advocate for the petitioner invited the reasoning cited by Debt Recovery Tribunal to impose the cost, extracted herein below.

"it is a high value case in which bank has claimed recovery of Rs.168,74,53,914.30/­ (Rupees one hundred Sixty Eight Crores Seventy Four Lacs Fifty Three Thousand Nine Hundred Fourteen and Paise Thirty only) and it is astonishing that in this bank has claimed its recovery by enforcing its rights over hypothecated vehicles only and there is no other collateral security and bank has failed to prove on record hypothecation as required and expected from a financial institution to have effective relief. Although the defendants appeared and failed to file written statement but bank cannot be allowed to bank upon weakness of defendants. It was the duty of the bank to prove its case at first instance. So keeping in view gravity of latches and negligence on the part of the bak, I feel fair to impose cost of Rs.5.00 Lacs to be deposited with National Defence Fund Account no.11084239799 State Bank of India at new Delhi Main Branch (00691). The Ld. Recovery officer will proceed further after compliance of

C/SCA/5679/2021 ORDER

this order."

4.2 It was further submitted on behalf of the petitioner Bank that the reasoning does not stand to rationale for imposing cost and even further that the Tribunal does not have the powers to pass such order of costs.

5. We have desisted from deciding the above contention of the petitioner only for the reason that under Section 20 of the Recovery of Debts and Bankruptcy Act, 1993, the appeal lies to the Appellate Tribunal. The Section provides that any person aggrieved by an order made or deemed to have been made by the Tribunal, may prefer an appeal to Appellate Tribunal having jurisdiction in the matter. Therefore, any order, including part of the order of the Tribunal can be subjected to appeal before the Appellate Tribunal.

5.1 In view of the above statutory alternative remedy available with the petitioner against the part of the order with which the petitioner is aggrieved, we relegate the petitioner to the said Appellate Tribunal remedy leaving it open for the petitioner to prefer an appeal. If the question of limitation arises due to passage of time in prosecuting the present petition, such petition shall be treated as bonafide consumption of time. The petitioner may prefer an appeal within fifteen days from today before the Appellate Tribunal.

6. In the totality of the facts, and in order that the proposed appeal of the petitioner before the Appellate Tribunal is not rendered still­born or meaningless, though without expressing any final opinion on the merits of the part of the order by which

C/SCA/5679/2021 ORDER

the petitioner feels aggrieved, we deemed it fit to stay the implementation and operation of paragraph No.29(v) whereby the petitioner Bank is directed to deposit the cost of Rs.5,00,000/­ with National Defence Fund and the Recovery Officer is directed to proceed further after deposit of cost. The said part shall remain stayed till the appeal of the petitioner is presented before the Appellate Tribunal for hearing or till fifteen days from today, which ever is earlier. It will be open for the petitioner to urge his contentions to the Tribunal in respect of the said part of the order and the Tribunal shall decide on merits.

6.1 This Court has not gone into the merits of the issue involved.

7. With the above observations and directions, the petition stands disposed of.

(N.V.ANJARIA, J)

(A. C. RAO, J) Manshi