- (1.) BY way of this intra-court appeal, the appellant-petitioner seeks to question the order dated 09.07.2012 as passed in a pending writ petition (No. 4299/2010) whereby, on the prayer for interim relief, the learned Single Judge of this Court has observed and directed as under:- "The matter comes up on an application (IA No. 10110/12) preferred on behalf of the petitioners for early hearing of the stay petition. With the consent of learned counsel for the parties, the matter is taken up for consideration on the stay petition. Heard learned counsel for the parties. In the meanwhile and until further orders, the petitioners' property already attached shall not be put to auction provided the petitioners deposit a sum of Rs. 10 lacs within a period of two weeks. It is made clear that if the petitioners fail to deposit the amount in terms of this order, the respondents shall be at liberty to proceed with the auction of the property mortgaged forthwith in accordance with law. The stay petition stands disposed of accordingly. IA No. 10110/12 also stands disposed of." Seeking to question the order aforesaid, it has strenuously
(2.) BEEN argued by the learned counsel that the petitioner-appellant has questioned the order as passed by the Debt Recovery Appellate Tribunal, Delhi dated 19.11.2009 before the writ Court on strong and substantial grounds including the fundamental one that the Tribunal had taken into consideration such documents that had not even made a part of the record. It is submitted that as per the calculations after calculations given, apparent it is that the petitioner-appellant had rather paid more than the due amount as against the loan in question and in the given circumstances, the learned Single Judge was not justified in putting the condition of depositing an amount of Rs. 10,00,000/- for staying the auction of the property in question. The learned counsel submitted that when the only anxiety of the Bank could be about the money being secured and when substantial property of the appellant-petitioner is in the mortgage with the Bank as a security, there is no justification for putting the onerous condition of depositing an exorbitant amount of Rs. 10,00,000/- particularly when the writ petition has been filed on strong and substantial grounds. We have considered the submissions made by the learned counsel for the petitioner-appellant and perused the material placed on record. By the order dated 19.11.2009, the Appellate Tribunal has directed as follows:- "15. In the light of above discussion, I hereby set aside the judgement dated 30.12.2002 and direct the respondents to pay the normal rate of interest as agreed to through their acknowledgements etc. The claim of the Bank of the suit amount of Rs. 14,85,370/- with interest from 19.2.1996 @ 20.25% p.a. with quarterly rests is allowed." The aforesaid order dated 19.11.2009 has been put to challenge by the petitioner before the writ Court and certain submissions suggestive of a prima facie case have been made but, it cannot be assumed that for such submissions alone, the writ Court was required to stay the auction proceedings without any condition. The writ Court, while exercising jurisdiction under Article 226 of the Constitution of India, essentially being equitable and discretionary, keeps the overall circumstances of the case in view and has a discretion to pass interim order with or without any condition; and has a corollary discretion to put such condition as considered reasonable in the given set of facts and circumstances. The submissions as sought to be made by the learned counsel for the appellant-petitioner about the alleged error on the part of the Appellate Tribunal or about his stand that excess payment had already been made, would remain subject to the consideration of the learned Single Judge in the pending writ petition. For the present purpose, suffice is to observe that only by making out some points for arguments in a writ petition, ipso facto, a case for grant of interim relief is not made out. The aspects of balance of convenience and irreparable injury and all other relevant factors do have a material role to play. In the present matter, essentially concerning payment of Money under the order as passed by the Appellate Tribunal, the discretion as exercised by the learned Single Judge cannot be said to be suffering from any such error as to warrant interference in intra-court appeal. At this stage, the learned counsel for the appellant-petitioner submitted that the appellant may be allowed to furnish a bank guarantee instead of making payment. We are not at all impressed with this submission for the simple reason that payment of the amount cannot be equated with furnishing of a bank guarantee; and furnishing of a bank guarantee does not satisfy the requirements of the order as passed by the learned Single Judge with which, we are not interfering. The appeal fails and is, therefore, dismissed. The learned counsel now attempted to submit that a condition may be inserted in the order that in case, the petition is allowed, the amount would be restituted with interest. We are afraid, having not been urged before the learned Single Judge, this submission too does not deserve consideration by us. However, still, it is left open for the petitioner-appellant to make all the requisite submissions before the learned Single Judge in the pending writ petition in accordance with law.;