Ajay Kumar Mittal, J. - (1.) Through the present writ petition filed under Articles 226/227 of the Constitution of India, the petitioner prays for quashing the order dated 15.02.2016 (Annexure P-11) passed by the Debts Recovery Tribunal, Chandigarh (for short 'DRT') whereby the application for condonation of delay has been declined and the petitioner has not been allowed to participate in the auction proceedings despite being fully competent and eligible. Further prayer has also been made for a direction to the respondent-Bank to accept the bid of the petitioner and not to evict him from the house in question.
(2.) A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is a tenant under respondent No.2- Sh. Bal Krishan in the ground floor of the property bearing House No.7, Aggar Nagar Enclave, Ferozepur Road, Ludhiana consisting of two rooms, drawing room, kitchen, bathrooms and front verandah along with common passage/entrance/main gate since December, 2004 as per memorandum of rent note dated 15.12.2004 (Annexure P-1) on a monthly rent of Rs. 4,000/- per month. After sometime, respondent No.2 in order to get the premises vacated started harassing the petitioner and being a businessman, he had taken loans/cash credit facilities from financial institutions and had allegedly mortgaged the present property to Punjab and Sind Bank for availing the loan facility. This fact came to the knowledge of the petitioner from respondent No.2 who received a notice dated 21.01.2014 (Annexure P-2) under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'SARFAESI Act') which was served by respondent No.1(Punjab and Sind Bank) for recovery of the loan facility availed by respondent No.2 and for getting the symbolic possession of the house in question. Aggrieved thereby, the petitioner filed a suit for declaration and permanent injunction in the Civil Court on 22.09.2014 (Annexure P-3) for protecting his right as a tenant in the house in question and further to restrain the respondents from illegally dispossessing him. After notice in the civil suit, an application under Order 7, Rule 11 the Code of Civil Procedure (for short 'CPC') was filed by respondent No.1-Bank for rejection of the plaint/suit filed by the petitioner. Vide order dated 12.12.2014, the application of the Bank was accepted and the civil suit filed by the petitioner was rejected observing that in view of Section 13 of the SARFAESI Act, the aggrieved person could approach the DRT under Section 17 of the SARFAESI Act. Thereafter, the petitioner preferred securitization application (Annexure P-4) before the DRT, Chandigarh along with an application for condoning the delay under Sections 5 and 14 of the Limitation Act, 1963 read with Section 17 (7) of the SARFAESI Act, which had occurred because of approaching wrong forum. Notice was issued to the respondent-Bank, inter alia, stating that the property in question was symbolically possessed by the bank and the same had been put to auction. The respondent-Bank issued a public notice for E-auction on 07.12.2015 (Annexure P-5). The petitioner arranged funds to bid in the auction for the house in question and in order to participate in the auction, he wrote a letter to the respondent-Bank on 12.01.2016 (Annexure P-7 (colly.) for knowing the appropriate procedure for participating in the bid process and for depositing the earnest money of Rs. 2,250 lacs. The respondent-Bank issued a letter dated 13.01.2016 asking the petitioner to participate in the bid (Annexure P-8). The petitioner prepared a demand draft dated 14.01.2016 in favour of EMD Collection A/c No.06831100013200 P&SB amounting to Rs. 22,50,000/- (Annexure P-9) as mentioned in the auction notice dated 07.12.2015. On the date of the auction, since the respondent-Bank did not get any response for the bidding for the house in question and the petitioner was the only sole bidder, therefore, the respondent-Bank apprised the petitioner to come in the Lok Adalat on 13.02.2016. The petitioner, in order to, settle the matter in the Lok Adalat got a new demand draft dated 12.02.2016 amounting to Rs. 20 lacs in favour of the Punjab and Sind Bank (Annexure P-10). On 13.02.2016, when the petitioner appeared before the Lok Adalat for settlement and to pay the amount, it was averred by the respondent-Bank that the Lok Adalat was not a forum for finalizing the auction bid and the petitioner could not sign as he was not the borrower but only a bidder and therefore, was a third party, not competent to sign the settlement. Vide order dated 15.02.2016, the DRT, Chandigarh declined to condone the delay and dismissed the application of the petitioner (Annexure P-11). Hence, the instant writ petition.
(3.) A written statement has been field on behalf of respondent No.1 - Punjab and Sind Bank wherein it has been inter alia stated that respondent No.3 M/s Swati Cast and Forge Private Limited had been availing credit facilities from respondent No.1 Bank from time to time to the extent of Rs. 21,25,96,000/- through its directors respondent No.2 Shri Bal Krishan, Smt.Parmod Rani and Shri Anand Sagar. They stood as joint and several continuing guarantors for the repayment of the said credit facilities to respondent No.1. They failed to adhere to the financial discipline of the respondent Bank so the account of respondent No.3 was classified as non performing assets on 31.12.2013 as per norms and guidelines laid down by the Reserve Bank of India. Since respondent No.2 and 3 failed to pay the due amount, the respondent Bank was left with no alternative but to serve a notice under section 13(4) of the SARFAESI Act. It also took the symbolic possession of the mortgaged property including the property in dispute on 25.3.2014 which was duly published in the newspaper on 27.3.2014. Thereafter the respondent Bank put the property in dispute on sale on 7.12.2015. The bids were to be received on 14.1.2006 through e-auction. Learned counsel for the petitioner stated before the Tribunal on 16.12.2015 that the petitioner was ready to participate in the bidding and will also pay the higher price than the bid received. On 18.1.2016, the application for condoning the delay was declined but at the request of the petitioner, the matter was referred to the Lok Adalat for 13.2.2016 wherein the petitioner refused to sign and the matter was not settled. On 12.1.2016, the petitioner again wrote a letter to the respondent Bank for participating in the bid. The respondent Bank replied that the petitioner may participate in the bid. Still the petitioner did not participate in the bid. It has been further averred that the petitioner is claiming himself to be tenant in the property in dispute on the basis of forged and fabricated memorandum of rent deed dated 15.12.2004 which is not a registered document and does not confer any legal right on the petitioner. On these premises, prayer for dismissal of the petition has been made.;