- (1.) Aggrieved by order dated 10.12.2009 in Appeal No. 15 of 2008 passed by the Debts Recovery Appellate Tribunal, Kolkata, the petitioners, the auction purchasers have approached this Court.
(2.) The creditorBank initially filed Mortgage Suit No. 21 of 1994 against M/s Auto Engineering through its sole proprietor Shri Jagdish Prasad Sahu and others in the Court of SubJudge, Ranchi. Subsequently, the suit was transferred to Debt Recovery Tribunal, Patna and reregistered as P.T. No. 138 of 1998. The creditor and other respondents did not appear before the Debt Recovery Tribunal, Patna and an exparte order was passed in P.T. No. 138 of 1998. A certificate was drawn under Section 19 (22) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for Rs. 13,13,573.27/along with interest @ 18.75% and cost thereon. The certificate issued by the Presiding Officer, Debt Recovery Tribunal, Patna in PT No. 138 of 1998 was received by the Recovery Officer on 12.03.2002. After the notification for Debt Recovery Tribunal, Ranchi was issued, the matter was transferred to Debt Recovery Tribunal, Ranchi and it was renumbered as R.P. No. 140 of 2002. In the proceeding of R.P. No. 140 of 2002 also, the Certificate Debtor did not appeared and therefore, the immovable property of Certificate Debtor was attached under Rule 48 of Second Schedule to the Income Tax Act, 1961 read with Section 25 (a) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Vide order dated 02.02.2005 sale of the attached property through public auction was ordered and vide order dated 15.03.2005 the certificate holderBank was directed to submit the valuation report. On 09.05.2005 one Smt. Bina Singh (Respondent no. 5) appeared and filed her objection stating that she was owner in possession of the attached property which she acquired from legal heirs/successors of Smt. Santosh Saboo. She produced a copy of Agreement of Sale dated 14.08.2002 and Power of Attorney dated 14.08.2002 executed by Jagdish Prasad Saboo. Vide order dated 27.01.2006, the intervenor's prayer was rejected and thereafter the respondentBank as well as Certificate Debtor appeared on 21.03.2006 and both filed separate applications for deferring the auction sale on the ground that the proposal for compromise was pending before the respondentBank. The Recovery Officer, Debt Recovery Tribunal, Ranchi rejected the application filed by the certificate debtor observing that the creditorBank could not have compromised the matter when the decretal dues along with the interest was more than rupees 40 lakhs and the property was valued by the independent valuer at Rs. 27,25,000/. It was further observed by the Recovery Officer that when the bidders were willing to pay Rs. 27,27,000/or more it would be highly improper on the part of the Recovery Officer to permit compromise at a meagre sum of Rs. 9,95,767/. On 27.04.2006 the auction sale took place in which the petitioners were declared successful bidder and vide order dated 21.08.2006 the auction sale in favour of the petitioners was confirmed by the Recovery Officer, Debt Recovery Tribunal, Ranchi. The petitioner took possession of the property on 26.08.2006 and after renovating the property, leased out the same to one M/s Heritage Televentures Ltd. & B.P. Poddar Group and its Associates. In the meantime, the Judgment Debtor filed an application being M.A. No. 17 of 2006 before the Presiding Officer, Debt Recovery Tribunal, Ranchi which was dismissed holding that the Reserve Bank of India guidelines were not applicable because certificate was already issued. The Judgment Debtor had also moved an application being M.A. No. 28 of 2006 for setting aside exparte judgment dated 04.02.2002 passed in P.T. No. 138 of 1998 however, it was dismissed by the Debt Recovery Tribunal, Ranchi vide order dated 01.08.2006. The respondent nos. 2 and 3 challenged orders passed in M.A. No. 28 of 2006 and M.A. No. 17 of 2006 both dated 01.08.2006. The learned Debt Recovery Tribunal, Kolkata vide order dated 10.12.2009 allowed the appeal filed against order dated 01.08.2006 passed in M.A. No. 17 of 2006 however, challenge to order dated 01.08.2006 in M.A. No. 28 of 2006 was not pressed by the respondents nos. 2 & 3. Consequently, the auction sale of the property in question held on 27.04.2006 was also setaside.
(3.) A counteraffidavit on behalf of respondent nos. 2 and 3 has been filed stating that the respondentState Bank of India vide its letter dated 16.11.2005 made an offer of "one time settlement" for Rs. 9,95,767.93 and the said offer was accepted by the Certificate Debtor without any modification or variation vide letter dated 16.03.2006 along with payment of rupees 4.5 lakhs. Thereafter, with the permission of the Presiding Officer, Debt Recovery Tribunal, Ranchi the balance amount was paid and the compromise was completed but consequently, the learned Presiding Officer, Debt Recovery Tribunal, Ranchi refused to accept the "one time settlement". It is stated that during the year, 1995/96 the Certificate Debtors had shifted to Raipur, Chattisgarh for business purpose and therefore, no notice issued by Debt Recovery Tribunal, Patna or Debt Recovery Tribunal, Ranchi was ever served and the notice published in the newspaper at Ranchi also could not come to their notice. The agreement to sale entered into with Smt. Bina Singh was not executed with malafide intention. There is no bar against "one time settlement" in cases were certificate cases are pending. The creditorBank has not declared Certificate Debtor as wilfull defaulter. The "one time settlement" was entered into much prior to the auction sale and the auction purchaser had full knowledge of the settlement and thus, the auction purchaser has taken a calculated risk.;