Decided on March 16,2004



Pratibha Upasani, - (1.) THIS Misc. Appeal is filed by the appellants/original defendants being, aggrieved by the Order dated 13.10.2003 passed by the learned Presiding Officer of Debt Recovery Tribunal-III,- Mumbai on Exhibit No. 1 in Original Application No. 212 of 2003. By the impugned order, the learned Presiding Officer appointed receiver with respect to the properties of the appellants as described in Exhibits A 1, A2, A3, B and C annexed to the plaint/original application and further ordered that the receiver to carry out first the inventory and thereafter submit report and thereafter he should proceed for sale of the properties by adopting due procedure for the same. He also directed that the applicant Bank namely the ICICI Bank Limited who is respondent No. 1 herein could appoint any person from the Bank so as to take the possession of the properties for the sale of the properties.
(2.) I have heard Mr. Madkholkar for the appellants and Mr. Sakseria for the Bank. I have gone through the voluminous proceedings including the impugned order, Roznama of the case and other relevant papers and in my view, the learned Presiding Officer has hastily passed the Order of appointment of receiver with further directions to take inventory and sell the property in question, not because the Order is erroneous on merits. In fact, the matter has not been examined by me on merits at all. It appears that the learned Presiding Officer was unfair in passing the Order without giving full opportunity to the appellants to present their case as their arguments were not concluded and their matter was hastily posted for orders. It also appears that in fact when Advocate appearing for the appellants requested for time, the said application was rejected. Main grievance of Mr. Madkholkar, the learned Advocate appearing for the appellants is that in this matter right from the beginning one Counsel Mr. Milind Gokhale was appearing and he was the one who was arguing the matter, Mr. Milind Gokhale was staying at Hyderabad and he used to come to Bombay to attend to this matter. Ms. Lata Wadhawani though was representing for the appellants/defendants had yet to file her Vakalatnama. She had undertaken to file the same on the subsequent date. Mr. Madkholkar contended that Mr. Milind Gokhale argued the matter on two occasions and therefore vas well acquainted with the facts of the case. When this part-heard matter appeared on the board on 9.10.2003, Ms. Lata Wadhwani made application in writing praying for adjournment on the ground that Counsel appearing in the matter namely Mr. Milind Gokhale had not come from Hyderabad as he was suffering with back pain and he was advised to take complete bed rest for at least 10 days. She tendered affidavit of Mr. Gokhale dated 8.10.1993 before the learned Presiding Officer and prayed for adjourning the matter to any other date. Mr. Madkholkar contended that the learned Presiding Officer however declined to grant any adjournment and asked Ms. Lata Wadhwani to argue herself though there was no formal Vakalatnama filed. She, of course, expressed her inability to do so. Thereafter, the learned Presiding Officer heard arguments of only applicant Bank namely ICICI Bank Ltd. and posted the matter for orders to 10.10.2003. However, on that dale, since the learned Presiding Officer was busy in hearing arguments of some other matters, he did not pass any Order in this matter and adjourned the same for orders to 13.10.2003. On 13.10.2003 Ms. Lata Wadhwani was present. She tendered Vakalatnama and also made an application requesting for reopening the case. However, the learned Presiding Officer rejected the said application as not maintainable and passed the impugned order. Mr. Madkholkar, citing this chronology of events and history of the matter, vehemently argued that arguments of the defendants were not concluded and in spite of the request made by Ms. Wadhwani to adjourn the matter on the ground of inability of the Counsel Mr. Milind Gokhale to remain present and conclude the arguments due to his illness, the learned Presiding Officer hastily went on to pass the Order which was virtually ex parte. He submitted that on merits also, he had much to argue but at the moment, he was pressing the point as to how principles of natural justice were violated and how sufficient opportunity was not given to his clients to present their case. He therefore prayed that such opportunity be given to his clients and matter be remanded back to the learned Presiding Officer for hearing afresh. He made only this prayer and did not argue anything on merits of the matter.
(3.) MR. Sakseria, however vehemently argued mainly on the merits of the matter. He pointed out from the proceedings and annexures that the appellant company was in a very bad shape, was facing financial constraints, was neck-deep in trouble, that dues from the appellants were huge, which are public funds that many Company Petitions for winding up of the appellant company were admitted by the Karnataka High Court. He supported the impugned order. He denied that any haste was shown by the learned Presiding Officer in passing the impugned order. He stated that Ms. Lala Wadhwani was directed to proceed with the matter though there was no Vakalatnama filed, but it was she, who declined to argue the matter further.;

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