The Court made the following: ORDER
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THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI WRIT PETITION Nos.2437 OF 2022 AND 18462 OF 2021
COMMON ORDER: (Per Hon'ble Sri Justice A.V.Sesha Sai) Heard Sri Sreedhar Valiveti, learned counsel for the petitioner and Sri N.Jeevan Kumar, learned Standing Counsel for the respondent, apart from perusing the material available on record.
2. Since the orders impugned in these Writ Petitions arise out of one Securitization Application filed by the respondent against the petitioner-bank, this Court deems it appropriate to dispose of these two Writ Petitions by way of this common order.
3. The respondent herein, invoking the jurisdiction of the Debts Recovery Tribunal, Visakhapatnam, under Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the SARFAESI Act'), filed S.A.No.333 of 2019, questioning the steps taken under the provisions of the said legislation. Pending S.A.No.333 of 2019, the petitioner-bank issued a notice under Rule 8(6) of the Rules on 06.02.2020, proposing to auction the subject properties on 12.03.2020. Subsequent to the said sale notice dated 06.02.2020, when a proposal was made before the Debts Recovery Tribunal in S.A.No.333 of 2019 by way of a memo filed by the respondent herein, the Debts Recovery Tribunal, vide order dated
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27.11.2020, disposed of S.A.No.333 of 2019 along with I.A.No.1562 of 2020. The operative portion of the said order reads as follows:
"Hence, the applicants/petitioners are directed to pay the entire debt due of Rs.19,82,91,697.84 ps along with future interest and SARFAESI expenses including future interest to the respondent bank in 12 equal instalments payable bi-monthly (i.e., in every 2 months) into the respondent bank starting from January, 2021 to be deposited by the applicants/petitioners into the respondent bank and the respondent bank upon receiving 3 (three) bi-monthly instalments from the applicants/petitioners, shall release the item No.2 property as mentioned in rule 8(6) notice dt.3.2.2020 which is mentioned as Property No.4 of possession notice dt.20.8.2019 which is the property in the name of Smt. G.Suseela and release the concerned title deeds documents and discharge the mortgage on the property and subsequently, after receiving another 3 (three) bi- monthly instalments from the applicants/Petitioners the respondent bank shall release the item No.1 property as mentioned in rule 8(6) notice dt.5.2.2020 which is mentioned as property No.3 of the possession notice dt.20.08.2019, which is the property in the name of Sri G.Bhaskar Rao and release the concerned the deeds/ documents discharge the mortgage on the property and the respondent bank may file part satisfaction Memo in OA.68/2020 at DRT, Hyderabad on payment of instalments by the applicants. In the meanwhile the respondent bank is directed not to take any coercive action under SARFAESI Act in respect of schedule mentioned and the respondent bank is further directed to receive the entire outstanding amount plus interest and expenses incurred under SARFAESI Act, in respect
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of schedule property from the applications/Petitioners in 12 instalments commencing from January 2021 payable bi-monthly as stated supra, and after receiving the amount bi-monthly from the applicants/Petitioners as stated supra to the applicant/petitioner and discharge the personal mortgage and mortgage of the concerned property and deliver all the documents to the applicants.
If the applicants/applicants failed to pay any two consecutive instalments (payable bi-monthly) as stated above into the respondent bank, the stay so granted shall automatically stands vacated and the respondent bank is at liberty to proceed further in the matter in accordance law.
After payment of the entire dues by the applicants the respondent bank should withdraw all the cases filed against the applicants after receiving the entire amount."
4. Subsequently, the respondent herein filed M.A.No.19 of 2021 before the Tribunal for a direction to the bank to release item No.2 property as mentioned in Rule 8(6) notice dated 05.02.2020 and as property No.4 in the possession notice dated 20.08.2019, standing in the name of Smt. G.Suseela and to release the concerned title deeds/documents and to discharge the mortgage on the property. The Tribunal, vide order dated 16.07.2021, disposed of the said M.A.No.19 of 2021 with a direction to the petitioner- bank to release the said property and to release the concerned title deeds/documents to the applicant and to discharge the mortgage on the property. Assailing the validity of the said order dated
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16.07.2021 in M.A.No.19 of 2021, W.P.No.18462 of 2021 came to be filed. This Court on 01.09.2021, granted interim stay of the order passed in M.A.No.19 of 2021. In S.A.No.333 of 2019, another M.A.No.37 of 2021 was filed for a direction to the petitioner-bank to release item No.1 property as mentioned in Rule 8(6) notice dated 05.02.2020 which is mentioned as property No.3 in the notice dated 20.08.2019, standing in the name of Sri G.Bhaskar Rao and to release the title deeds/documents and to discharge the mortgage on the property. The Tribunal, vide order dated 18.10.2021, disposed of the said M.A.No.37 of 2021, granting the relief as prayed for. The said order passed in M.A.No.37 of 2021 is under challenge in W.P.No.2437 of 2022 and this Court on 02.02.2022, granted interim stay. Seeking vacation of the aforesaid interim orders granted by this Court, now vacate applications have been filed by the respondent in the Writ Petitions.
5. According to the learned counsel for the petitioner in both the Writ Petitions, Sri Sreedhar Valiveti, the orders passed by the Tribunal, which are impugned in the Writ Petitions, are highly erroneous and contrary to law and having regard to the facts and circumstances of the case, they are liable to be set aside. It is further submitted by the learned counsel that now the Appellate Tribunal has become functional and the Appeal stands posted to
28.07.2022.
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6. On the other hand, it is submitted by the learned counsel for the respondent in both the cases, Sri N.Jeevan Kumar, that as the respondent herein is strictly adhering to the orders passed by the Tribunal in S.A.No.333 of 2019, there is absolutely no justification on the part of the petitioner-bank authorities in not releasing the properties and the mortgages. It is also brought to the notice of this Court by the learned Standing Counsel for the petitioner-bank that the orders passed in S.A.No.333 of 2019 dated 27.11.2020 and M.A.No.19 of 2021 dated 27.05.2021 and M.A.No.37 of 2021 dated 07.10.2021 are under challenge in an appeal filed by the petitioner-bank before the Debts Recovery Appellate Tribunal, Kolkota, vide Diary No.542 of 2021. It is also the submission of the learned counsel for the petitioner-bank that in view of the absence of the Presiding Officer in the said Appellate Tribunal at the time of filing the present Writ Petitions, the petitioner-bank was constrained to approach this Court by way of the instant Writ Petitions.
7. It is not in dispute that now a regular Presiding Officer is functioning in the Appellate Tribunal, Kolkota. As the orders impugned in these Writ Petitions are the subject matter of the Appeal referred to supra, this Court does not find any justification to examine the validity of the orders passed in M.A.No.19 of 2021 and M.A.No.37 of 2021.
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8. For the aforesaid reasons, the Writ Petitions are disposed of, leaving it open for the parties to the litigation to pursue the remedy already availed before the Debts Recovery Appellate Tribunal, vide Diary No.542 of 2021. It is further made clear that till the Appellate Tribunal considers and passes an appropriate order in the stay application said to have been filed by the petitioner-bank, the interim orders granted by this Court in these Writ Petitions on 01.09.2021 and 02.02.2022 shall remain operative. It is further made clear that the Appellate Tribunal shall make an endeavor to take up the matter and pass necessary orders, as expeditiously as possible. There shall be no order as to costs of the Writ Petitions.
As a sequel, interlocutory applications pending, if any, in these Writ Petitions shall stand closed.
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A.V.SESHA SAI, J
_________________________
RAVI NATH TILHARI, J
Date: 06.05.2022 siva
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THE HON'BLE SRI JUSTICE A.V.SESHA SAI
AND
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION Nos.2437 OF 2022 AND 18462 OF 2021 Date: 06.05.2022
siva