M/S INFINITY SEZ PRIVATE LTD. v. I.F.C.I. AND ORS.

2. The present writ petition was filed in 2009 as the Recovery Officer without deciding objections raised by the petitioner had directed auction of land measuring 30.05 acres in survey Nos. 210, 241, 241/1 to 3, 242/2 and 243 (New comprehensive survey No.210) situated at Dhodipada-Morkhal Road, village Morkhal, Silvassa, Dadra and Nagar Haveli. This is clear from the writ petition itself wherein in paragraph 27, the petitioner has precisely and affirmatively stated their grievance; that they were aggrieved by the impugned continuing inaction of the Recovery Officer or failure to decide their objection, and at the same time the property had been put to auction. The petitioner claims that they had earlier deposited Rs.1.70 crores in a ‘No Lien Account’ and have set out facts in paragraphs 4 to 20 of the writ petition. It is averred that this amount should be refunded to them as the land has not been sold/transferred to them. We only record that there may be disputed questions of fact and the respondents have contested the aforesaid assertions made in paragraphs 4 to 20 by the petitioner. It is one of the reasons why we feel that it would not be appropriate to decide the question of refund etc. in this petition.

3. By order dated 17th December, 2009, the Court had issued notice and had passed an interim order permitting auction of the land but recorded that in case the auction fructifies into sale, the amount received would be appropriated by IFCI but they shall file an undertaking that in case the petition is decided in favour of the writ petitioner, refund would be directed and amount of Rs.1.[3] crores along with interest would be refunded.

4. It so transpires that this auction was held but the sale certificate has not been issued as stay has been granted by Debt Recovery Appellate Tribunal. In the meanwhile, the borrower M/s AEC Ssangyong Limited had submitted a proposal, which has been approved by IFCI and Bank of India. It is pointed out that as per the one time settlement proposal, Rs.1.70 cores paid by the petitioner is be appropriated by the banks against the dues of the borrower.

5. During the course of hearing, it has also been brought to our notice that the Recovery Officer by order dated 16th December, 2009 had dismissed the objections filed by the petitioner herein recording that this was an internal arrangement between the objector and the borrower. However, the objector, i.e., the present petitioner was given liberty to participate in the auction sale. The petitioner herein has not impugned this order before us by amending the writ petition. It is stated that this was because of the pendency of present writ petition and orders passed including order dated 17th December, 2009. Thus no appeal has been preferred against order dated 16th December, 2009 before the Presiding Officer, Debt Recovery Tribunal.

6. IFCI in their counter affidavit have taken a preliminary objection that the petition is not maintainable as the petitioner has alternative and equally efficacious remedy by way of an appeal under Section 30 of the Act. Learned counsel appearing for Bank of India has relied upon two decisions of the Supreme Court in United Bank of India versus Satyawati Tondon and Others, (2010) 8 SCC 110 and Kanaiyalal Lalchand Sachdev and Others versus State of Maharashtra and Others, (2011) 2 SCC 782 and submits that it would be just and appropriate if the petitioner exercises their right to appeal under the Act.

7. As noticed above, the present writ petition has remained pending in this Court since 17th December, 2009. From time to time various orders have been passed. Subsequent developments have been noticed. Keeping in view the aforesaid factual position, learned counsel for the petitioner has given concessions, which we have recorded in paragraph 1 above. In view of the aforesaid position and looking at the fact that the petitioner has been bona fidely pressing and prosecuting the proceedings in this Court, the present writ petition is being disposed of giving the following directions:

(i) The petitioner may file an appeal against the order dated 16th December, 2009 before the Presiding Officer, Debt Recovery Tribunal and in case any appeal is filed within a period of 30 days from today, it will not be dismissed on the ground of limitation.

(ii) The undertaking given by IFCI will continue till the disposal of the appeal by the Presiding Officer, Debt Recovery Tribunal. However, Presiding Officer, Debt Recovery Tribunal will be entitled to modify, amend or vacate the aforesaid direction in case any party is at default or delaying the proceedings.

(iii) It will be open to the petitioner to file objections against the OTS before the Presiding Officer, Debt Recovery Tribunal and it will be open to the respondents to point out that the said objections are not maintainable on merits and/or are not justified. Objection, if filed, will be dealt with in accordance with law.

(iv) As there is urgency and the disputes have remained subjudice for long, Presiding Officer, Debt Recovery Tribunal will try and dispose of the appeal, objection and proceedings expeditiously and preferably within a period of six months from the date the appeal is filed.

(v) Parties aggrieved by any order would be entitled to challenge the same in accordance with law.

8. We clarify that we have not expressed any opinion on merits, which will adversely affect the parties in the appeal or proceedings before the Debt Recovery Tribunal and other authorities. The writ petition is disposed of. Copy of this order be given dasti to the learned counsel for the parties under signature of the Court Master.

SANJIV KHANNA, J. V. KAMESWAR RAO, J. JULY 17, 2014 VKR