Jitender Singh Surinder Chadha v. Hdfc Bank Limited And 6 ORS

AGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 85 OF 2016 Jitender Singh Surinder Chadha

...Petitioner

Versus

HDFC Bank Limited & 6 Ors.

...Respondents

Mr. Mathew Nedumpara, with Mr. Nishant Sangle, for the Petitioner.

Mr. Pravin Samdani, Senior Advocate, with Mr. Mayur Khandeparkar & Mr. Parikshit Desai, i/b Mr. Hiren Mehta, for Respondent No. 1.

CORAM: S.C. DHARMADHIKARI & G.S. PATEL, JJ.

DATED:

20th January 2016 PC:- 1.

The Petitioner has filed this Writ Petition under Article 226 of the Constitution of India against a common order below Interim Application Nos. 5 and 6 of 2016 (Exhibit "6") in Original Application Nos. 19 and 20 of 2016.

2.

The Original Application Nos. 19 and 20 both of 2016 are instituted by the 1st Respondent-Bank for recovery of certain amounts stated to be due and payable in respect of credit facilities extended to the Tornado Motors Private Limited and Torant Motors Private Limited, Defendant No. 1 in the Original

Applications. The Petitioner is Director of Tornado Motors Private Limited.

3.

Apprehending that certain properties constituting the security assets of the Bank are being allegedly disposed off or dealt with to the prejudice of the Original Applicants' interest, an application for urgent interim relief was moved by the Bank. 4.

The Petitioner appeared on notice and engaged Respondent No. 5 as his Advocate.

5.

The moment Respondent No. 5 was engaged as an Advocate and she appeared before the Presiding Officer, a request was made that not only the Petitioner desires to oppose the prayers in the interim applications, but it is requested that the Presiding Officer of Debt Recovery Tribunal-II, Mumbai should not hear the applications either interim or final any further. An application to transfer the proceedings from his Court to some other Presiding Officer would be moved.

6.

The grievance of the Petitioner as projected by Mr. Nedumpara before us is two fold. When such an application is made and which is noted by the Presiding Officer, then, it was incumbent upon him not to have passed any orders on merits of the interim application and to the detrimental prejudice of the Petitioner. Merely because an Advocate is engaged by the Petitioner, namely, Respondent No. 5 and the matters of this Advocate are not taken up by the concerned Presiding Officer and two others of the Mumbai Debt Recovery Tribunal does not mean that an order ought to be

passed without an opportunity being granted to the Petitioner to defend himself.

7.

The second grievance of Mr. Nedumpara is not only an order of status quo was passed in relation to the properties more particularly mentioned in the impugned order, but grant of that interim order was directed to be published in newspapers and which is an unusual and abnormal direction. Mr. Nedumpara would submit that merely because huge sums are outstanding, due and payable and proceedings are initiated in a Court of Law and the Court of Law is persuaded to pass protective order does not mean that wide publicity should be given to it. When the Petitioner is yet to be declared as a defaulter or it is yet to be determined whether any amount is due and recoverable from him, then, such a direction violates the fundamental guarantees under the Constitution of India as well.

8.

On the other hand, Mr. Samdani, learned Senior Advocate appearing on behalf of Respondent No.1, Bank supported the grant of ad-interim order and submitted that since the ad-interim protection also extends to certain movables like motor vehicles etc., most of which may be changing hands so as to defeat the claim of the 1st Respondent Bank, then, the order of publication was justified. As regards the application made by the Advocate and the Petitioner for transfer of proceedings, Mr. Samdani would submit that every time the bank institutes proceedings in Debt Recovery Tribunal, Mumbai they would be faced with such requests and to stall and prolong the cases. Such request, therefore, should not be countenanced and granted as a matter of course.

9.

After having heard both sides and perusing the Petition and annexures thereto, what we find is that at Annexure "C" is a copy of the resolution. That resolution dated 19th May 2014, copy of which is transmitted even to the Hon'ble Chairperson of the Debt Recovery Appellate Tribunal, Mumbai for necessary information and needful is signed by the Presiding Officer, Debt Recovery Tribunal-II, Mumbai Mr. Mohammad Jafar Imam. It is this Presiding Officer who has passed the impugned order. The resolution recites that apart from the matters of Mr. Mathews J. Nedumpara those of his juniors, including Ms. Rohini Amin will not be taken up by any of these Presiding Officers.

10. Once this was the position and indeed the Petitioner engaged Ms. Rohini Amin, then, we are of the opinion that the facts and circumstances and the peculiar situation warrant that the Original Application Nos. 19 and 20 of 2016 together with the interim applications and all proceedings are transferred to some other Debt Recovery Tribunal.

11. After some arguments and on instructions, Mr. Samdani, learned Senior Advocate appearing for the 1st Respondent Bank states that the Bank would have no objection if all these proceedings are transferred to the Debt Recovery Tribunal, Pune for adjudication in accordance with law. Mr. Samdani's next request is that the interest of the Bank should be protected and the ad-interim relief granted by the learned Presiding Officer should not be vacated merely because the proceedings stand transferred.

12. After having heard Mr. Nedumpara on this point, we are of the view that interest of justice requires protection of the Bank's interest as well. So as to balance the rights and equities, we direct that the order of status quo passed by the learned Presiding Officer on 12th January 2016 shall be treated as an ad-interim order and will continue till the Interim Application Nos. 5 and 6 of 2016 in both the Original Applications are heard and disposed of.

13. Both sides agree that they will appear before the learned Presiding Officer, Debt Recovery Tribunal, Pune on 8th February 2016. Let the papers and proceedings be forwarded by the Registrar, Debt Recovery Tribunal, Mumbai to the Debt Recovery Tribunal, Pune so as to enable the said Debt Recovery Tribunal to take up the matters on the fixed date and time.

14. We clarify that all contentions of all parties on merits of the applications are kept open.

15. This order shall not be treated as a precedent for all the cases nor shall this order be treated as an expression of any opinion on the merits of the controversy particularly in relation to the resolution of the Presiding Officers of Debt Recovery Tribunal.

16. With these observations, the Writ Petition is disposed of. (G. S. PATEL, J.) (S.C. DHARMADHIKARI, J.)