Decided on October 04,2007



M.C.Jain, - (1.) THIS appeal is directed against the order dated 6.10.2006 passed by the Tribunal below on I.A. No. 254/2006 in O.A. No. 121/2004. The O.A. in question has been filed by the respondent No. 1-Bank against the appellants/defendants and others for the recovery of certain amount. The other defendants in the O.A. are respondents 2 to 12 herein.
(2.) The respondent-Bank also proceeded under the SRFAESI Act against the defendants and took physical possession of certain property after dispossessing the appellants/defendants. The respondent-Bank then filed an application to withdraw the O.A. as it decided to proceed under the SRFAESI Act. The application of the Bank was decided by the Tribunal below by order dated 5.7.2005 and the O.A. was allowed to be withdrawn. The appellants challenged the order dated 5.7.2005 before this Appellate Tribunal by means of a miscellaneous appeal. When that appeal came up for hearing on 18.4.2006, it was represented by the respondent-Bank that they were willing to prosecute the O.A. and sought permission for the same. The appellants prayed for necessary direction to the Bank to restore the possession of the property in question. Accordingly, the order of the DRT dated 5.7.2005 allowing withdrawal of the O.A. was set aside, paving way for the regular trial of the O.A. In other words, the O.A. was revived by this Appellate Court's order dated; 18.4.2006. As regards the restoration of the possession of the property to the appellants, it was ordered that appropriate application could be made before the Tribunal below for appropriate relief. The appellants approached the respondent-Bank for restoration of the possession of their residential house as it (Bank) had elected to proceed with the O.A. But, the Bank kept the matter lingering on. The appellants served a legal notice dated 9.5.2006 on the respondent-Bank and the authorised officer of the Bank for the restoration of the possession, but in vain. The appellants then filed an application for restoration of the possession before the Tribunal below, the decision on which has given rise to this appeal. The Tribunal below held that the action of the respondent-Bank taking over the physical possession of the property was in accordance with law and in the eventuality of restoration of the possession, several complications would arise. The application was accordingly dismissed, holding that they (appellants) were not entitled to get back the possession of the property in question. The parties were directed to maintain status quo with regard to the property in question, but the O.A. was to proceed ahead in accordance with law. So, the grievance of the appellants is against the refusal of the restoration of possession to them of the property in question. I have heard Mr. I.P. Singh, Counsel for the appellants and Mr. M.U. Khan, Counsel for the 1st respondent-Bank. I have given my anxious consideration to the matter. While Mr. I.P. Singh argued for the restoration of the possession to the appellants, Mr. Khan, per contra, opposed the said prayer and urged that there could be no question of ordering the restoration of the possession of the property in question by making an order in the O.A. A reply has also been filed against the appeal. I am of the view that the appeal can be disposed of with a very short discussion.
(3.) THE Hon'ble Supreme Court's decision in Transcore v. Union of India and Anr. I (2007) BC 33 (SC), came on 29.11.2006. THE Miscellaneous Appeal filed by the appellants against the order dated 5.7.2005 of the DRT (permitting the withdrawal of the O.A.) was decided by this Court on 18.4.2006, i.e., before the Transcore's judgment came. After Transcore's decision, action against borrower is possible simultaneously under the SRFAESI Act during pendency of O.A. Against the action of the Bank under Section 13(4) of the SRFAESI Act, an application/appeal by the aggrieved person lies before the DRT, and the DRT is competent to pass appropriate order on consideration of the matter and after hearing the warring parties. THE impugned order by the DRT was passed on 6.10.2006, i.e., before the decision in Transcore's case came to hold the field. So, the impugned order passed by the Tribunal below on an application made in O.A. declining to restore possession of the property to the appellants/defendants cannot be faulted. Of course, the appellants/defendants can ventilate their grievance against the action of the Bank in taking over the possession of the property in question under the SRFAESI Act, by filing an application/appeal under Section 17 of the Act. Needless to say, the DRT is empowered to pass appropriate orders thereon. But, there can be no question of the continuance of status quo order in respect of the disputed property through a direction/order in O.A.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.