SRI RAJA RAJESWARI TEXTILES Vs. CHIEF MANAGER STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) THE petitioner has filed I.A. No. 10 of 2001 (dated 26.12.2001) and 11 of 2002 (dated 12.3.2002) duly supported by Affidavit for setting aside ex parte Decree dated 30.10.2001 and to restore the same on the file for further proceedings; I.A. No. 11 of 2001 has been filed, to advance the hearing of said I.A. in 0. A. No. 62/2001 from 27.3.2002 to any earlier date; it is worthwhile to mention here that the during the pendency of the said I.As : THE petitioner filed another I.A. No. 1 of 2002 (Dated 15.4.2002) under Order 21 Rule 90 read with Section 151 of CPC after the said I.As were transferred from DRT, Chennai, to this Tribunal.

(2.) In Affidavit filed in support of his earlier I.As filed before DRT-II, Chennai. It is submitted by the petitioner, that he availed off loan for their business under Cash Credit (Rs. 1.25 lakhs) and under M.T.L. (Rs. 3 lakhs) total amounting to Rs. 4.25 lakhs during the year 1988. The respondent Bank then started pressing for repayment of loan not only availed off; for this firm, but also availed off for M/s. Tamarai Textiles and D.K.D. Spinners. The respondent Bank intimated total liability to the tune of Rs. 24,36,681/- as on 11th September, 2001, as per the guidelines issued by R.B.I. He has further submitted, that during the pendency of Suit, the respondent called for sealed tenders to sell the property, without his knowledge. Against this publication, vide which the tenders were floated, the petitioner filed writ petition. The petitioner, Sh. V. Dev Raj has further solemnly affirmed, that this publication have a heavy hit, in the value of property. The petitioner is also aware of the fact that no order was passed by my predecessor Court oven on 26.9.2001 in Para 5 of the Affidavit. He has further submitted that he was ready to settle the matter for Rs. 15 lakhs whereas the respondent Bank gave acceptance letter for Rs. 24 lakhs (which was reduced from Rs. 24,36,681/- as per the R.B.I guidelines). The perusal of the record further reveals that Writ Petition No. 22746/2001 and W.M.P. No. 33467/2001 filed by petitioner, was dismissed with direction to raise all the points raised in the writ; before the Hon'ble Tribunal. It has been further submitted by the petitioner, that, in the meantime, the defendants/petitioner were ordered to be proceeded against ex parte vide order dated 31.10.2001, which is reported to have been received by them on 8.11.2001. Unless, the Tribunal set aside the ex parte decree dated 31.10.2001, he will not be in a position to raise the defence as per the direction of the Hon'ble High Court and settle the matter with bona fide intention, the averment made in affidavit in support of I.A. No. 11 of 2002 are almost the same, so they are not repeated here, in order to avoid repetition, except for advance hearing of the said petition from 27.3.2002 to any other date.

(3.) 1st respondent i.e. applicant Bank has raised objection, vide counter affidavit, that, since the application has been filed under Order 21, Rule 90 and Section 151 of the Code of Civil Procedure so the same is not maintainable hence the same is liable to be dismissed in limine, since Section 22 of RDDB & FI Act (For short, hereinafter referred to as the Act) clearly envisages that procedure laid down in CPC is not applicable. Respondent No. 1 has raised another objection, that, the petition has not been filed before this Hon'ble Tribunal, after exhausting the remedy available to petitioner. Respondent No. 1 has also submitted, that since no stay has been granted by this Tribunal, or Hon'ble Appellate Tribunal, so Recovery Officer, has validly conducted Sale. So any Plea raised by the petitioner at this stage that auction sale conducted by Recovery Officer of DRT, Chennai on 28.3.2002, has no legs to stand. The Notification dated 22.3.2002, has not ousted the jurisdiction of Recovery Officer, in conducting the sale on the date already fixed, before the issuance of Notification by the Government of India. The respondent Bank, has further controverted the allegation levelled by the petitioner, that there was only, one bidder, who is related to the Bank official. The respondent Bank, has also admitted the presence of the judgment-debtor at the spot, and have further submitted, that he had not raised any objection. It has been further submitted by the respondent Bank, that no objection was submitted in writing by the petitioner, during the auction. The respondent Bank have further solemnly affirmed that the upset price fixed at Rs. 9,80,000/- and the sale of property for Rs. 10 lakhs and ten thousands is very low, is untenable. Any objection as against the upset price can be taken only before the proclamation of sale and not at the petitioner's whims and fancy. Since no material irregularity in publishing or conducting the sale has been pointed out by the petitioner, so the auction sale cannot be set aside on the grounds as alleged by him. The respondent Bank has further submitted, that the petitioner has admitted liability vide letter dated 15.3.1997 and has also highlighted the conduct of the petitioner, through out the proceedings remained pending before DRT-II, Chennai. Firstly, it is pointed out by the respondent No. 1, that the petitioner has faulted the order dated 17.9.99 for depositing Rs. 1 lakh, and he has shown scant regards for the direction given by Hon'ble DRT, Chennai to deposit the amount, as per the compromise proposal dated 24.9.99. After ex parte decree dated 30.10.2001, DRC No. 562/61 has been issued. The sale stands confirmed on 7.5.2002 and auction purchaser has registered the sale deed with concerned Sub-Registrar. The respondent Bank has further submitted, that proposal of Rs. 15/- lakhs as pointed by the petitioner, is not at all agreeable as total liability as on date in all the 3 T.As. i.e. T.A. Nos. 816/2002 and 820/2002 in Rs. 70 lakhs. The respondent has further submitted that the petitioner is using only delaying tactics, and defrauding and depriving the Bank of the fruits of the orders passed by the Hon'ble Tribunal. Since the petitioner has not filed petition, within 30 days, so the sale has been rightly confirmed in favour of the auction purchaser on 7.5.2002. Hence, the application may be dismissed with exemplary costs.