S K VIJI Vs. INDIAN OVERSEAS BANK
LAWS(DR)-2006-3-11
DEBTS RECOVERY APPELLATE TRIBUNAL
Decided on March 23,2006

Appellant
VERSUS
Respondents

JUDGEMENT

K.Gnanaprakasam, - (1.) THE appellant have filed two applications in IAs 771 and 772/2004 in OA 305/2002, before the DRT-I at Chennai, for grant of interim injunction restraining the respondent Bank from proceeding further in pursuance of the notice dated 14.10.2004 issued under Section 13(2) of the Securitisation Act, till the disposal of the OA 305/2002 and both the applications came to be dismissed by order dated 22.2.2006. Aggrieved by the same, these appeals have been filed. I have heard the learned Advocate for appellants and the 1st respondent Bank.
(2.) The 1st respondent Bank filed OA for recovery of the amount due by one M/s. Krishna Agro Chem Ltd., and for the loan obtained by the said company it appears that the appellants' property was given as security when they were minors. But however, the Court permission was obtained for mortgaging the property for the loan obtained by the said company. Now it is stated that the said company has been sold out to third parties and they arc in possession of the said company and the same is also a running company. The respondent Bank after having filed the OA, has also resorted to proceedings under the Securitisation Act, and issued necessary notice under Section 13(2) and also taken measures as contemplated under Section 13(4) of the Securitisation Act. It appears that when the petitions filed by the appellants were pending, as further proceedings were taken by the respondent Bank, the appellant have approached the High Court, Madras, and their writ petitions came to be dismissed by observing that their case is covered by the judgment in M/s. Digivision Electronics Ltd. v. Indian bank and Anr. The appellants have also filed an application for clarification of the order of the High Court dated 18.7.2005, and the same was clarified by further order dated 25.8.2005, thereby directing the DRT to dispose of the applications filed by the appellants, which are pending before the DRT. It is submitted that in spite of that, the DRT has not disposed of the petitions and, therefore, the appellants are constrained to approach the High Court in WP No. 2846/2006, and the said writ petition came to be disposed of by order dated 2.2.2006, wherein direction was given to the DRT to dispose of the petitions of the appellants in IAs 771 and 772/2004. Pursuant to the same, the applications of the appellants were taken up by the DRT and those petitions were dismissed and the respondent Bank can take measures under the Securitisation Act to realise the amounts due to the Bank. DRT further added that if in case, the petitioners (appellants) are so aggrieved, it is open for them to challenge the action by filing an application under Section 17 of the Securitisation Act. At against the said order only, these appeals have been filed. The learned Advocate for the appellants is trying to make a submission that they have been wrongly prosecuting the applications in the OA thinking that their petitions have been filed only under the Securitisation Act, challenging the measures taken by the respondent under Section 13(4) of the Securitisation Act. It is further submitted that they have wrongly quoted the provision of law as if it was filed under the RDDB and FI Act, 1993, and actually meant these petitions have been filed under the SARFAESI Act, under Section 17 challenging the measures taken by the respondent Bank.
(3.) THE above said submission of the appellants was opposed by the learned Advocate for the respondent Bank by pointing out that the application have been filed only in the OA and they have been prosecuting these petitions only in the OA and as a matter of fact, when the writ petitions were pending in the High Court, the respondent bank have filed a counter affidavit wherein they have pointed out that the applications filed by the appellants are not maintainable in the OA proceedings and in spite of that the appellants have not chosen to take up necessary proceedings under the concerned Act and it is too late for the appellants to contend and say that they have been mistakenly prosecuting their applications as if it was taken under the Securitisation Act.;


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