Mrs.Shirin Iqbal, v. Indian Bank,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22/2/2018 C O R A M THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN Writ Petition Nos.1907 to 1914 of 2018 Mrs.Shirin Iqbal rep. By her Power of Attorney Mrs.Arjumand Abdullah.

... Petitioner in WP.Nos.1907 to 1910 of 2018 Mrs.Shirin Iqbal

...Petitioner in WP.No.1908,1909,1910 of 2018

Mrs.Munira Haroon Rep.by Poa Mrs.Arjumand Abdullah No.15, Rutland Gate 5th St.

Nungambakkam, Chennai 34 ...Petitioner in WP.No.1911 to 1914 of 2008 Vs

1. Indian Bank Madras George Town Branch No.155 Thambu Chetty Street Chennai 600 001.

2. M/s. Hamosons Apparels (P) Ltd No.18 Vannier Street Chennai 600 001.

3. M/s. Hamosons Apparels (P) Ltd A partnership firm represented by its Partners (Defendants 2, 4, 5 and 6) Guindy Chennai 600 097.

4. Mr.Abdul Razak Osman

5. Mr.Mohammed Hanif Osman Mrs.Zubeida Osman (since deceased)

6. Mrs.Munira Haroon

7. The Registrar Debts Recovery Appellate Tribunal Chennai.

...Respondents in WP.No.1907 of 2018

1 Indian Bank Madras George Town Branch No.155 Thambu Chetty Street Chennai 1.

2 M/s.Hamosons A Partnership Firm Rep by its Partners H.M. Centre No.

15A Nungambakkam High Road Chennai 34 Mrs.Zubeida Osman (since deceased) 3 Abdul Razak Osman 4 Mohammed Hanif Osman 5 Hamosons Apparels (P) Ltd.

Rep by its Partners (Defendants 3 to 5) H.M. Centre No.15A Nungambakkam High Road Chennai 34 6 Mrs.Munira Haroon 7 The Registrar Debts Recovery Appellate Tribunal Chennai

...Respondents in WP.No.1908 of 2018

1 Indian Bank Madras George Town Branch No.155 Thambu Chetty Street Chennai 1.

2 M/s.Hanif Bros. A Partnership Firm Rep by its Partners D5 to D8 H.M.

Centre No.15A Nungambakkam High Road Chennai 34 Mrs.Zubeida Osman (since deceased) 3 Nargis Abdul Razak 4 Mohammed Hanif Osman 5 Mrs.Farzana Hanif Osman 6 Ms.Rizwana Abdul Razak 7 Abdul Razak Osman 8 Mrs.Munira Haroon Rep by her Power of Attorney Mrs.Arjumand Abdullah No.15 Rutland Gate 5th Street Nungambakkam Chennai 34 permanently resi at Madurai 625 002

9 M/s.Hamosons A Partnership Firm Rep by its Partners (Defendants 1 3 4 and 5) No.51 North Phase Guindy Industrial Estate Guindy Chennai 97 10 The Registrar Debts Recovery Appellate Tribunal Chennai.

...Respondents in WP.No.1909 of 2018

1 Indian Bank Madras George Town Branch No.155 Thambu Chetty Street Chennai 1.

2 M/s.H.M.Hajee Moosa 60/1 Godown Street Madras 1 Mrs.Zubeida Osman (since deceased) 3 Nargis Abdul Razak 4 Mohammed Hanif Osman 5 Mrs.Farzana Hanif Osman 6 Ms.Rizwana Abdul Razak 7 Abdul Razak Osman 8 Mrs.Munira Haroon Rep by her Power of Attorney Mrs.Arjumand Abdullah No.15 Rutland Gate 5th Street Nungambakkam Chennai 34 permanently resi at Madurai 625 002 9 M/s.Hamosons Rep by D3 D5 and D8 Hamosons Apparels No.51 North Phase Guindy Industrial Estate Guindy Chennai 97 10 The Registrar Debts Recovery Appellate Tribunal Chennai.

...Respondents in WP.No.1910 of 2018

1 Indian Bank Madras George Town Branch NO.155 Thambu Chetty Street Chennai-600 001 2 M/s.Hamosons Apparels (P) Ltd No.18 Vannier St Chennai-01 Also at No.51 North Phase Guindy Industrial Estate Guindy Chennai-97

3 M/s.Hamosons A Partnership Firm rep by its Partners (Defendants 2 4 5 and 6) No.51 North Phase Guindy Industrial Estate Guindy Chennai-97 4 Mr.Abdul Razak Osman 5 Mr.Mohammed Hanif Osman Mrs.Zubeida Osman (since deceased) 6 Mrs.Shirin Iqbal P.O.Box No.2756 Ajman United Arab Emirates Having Res. at No.15 Rutland Gate 5th Street Nungambakkam Chennai-34 7 The Registrar Debts Recovery Appellate Tribunal Chennai

...Respondents in WP.No.1911 of 2018

1 Indian Bank ] Madras George Town Branch NO.155 Thambu Chetty Street Chennai-600 001 2 M/s.Hamosons A Partnership Firm rep by its Partners H.M.Centre No.15A Nungambakkam High Road Chennai-34 Mrs.

Zubeida Osman (Since Deceased) Mrs.Zubeida Osman (since deceased) 3 Mr.Abdul Razak Osman 4 Mr.Mohammed Hanif Osman 5 Mr.Hamosons Appearls (P) Ltd rep by its Partners (Defendants 3 to 5) H.M.Centre No.15A Nungambakkam High Road Chennai-34 6 Mrs.Shirin Iqbal W/o.Mr.Iqbal Abdullah P.O. Box No.2756 Ajman United Arab Emirates Having Residence at No.15 Rutland Gate 5th Street Nungambakkam Chennai-34 7 The Registrar Debts Recovery Appellate Tribunal Chennai

...Respondents in WP.No.1912 of 2018

1 Indian Bank Madras George Town Branch NO.155 Thambu Chetty Street Chennai-600 001

2 M/s.Hanif Bros.

A Partnership Firm rep by its Partners D5 to D8 H.M.Centre No.15A Nungambakkam High Road Chennai-34 Mrs.Zubeida Osman (since deceased) 3 Nargis Abdul Razak 4 Mr.Mohammed Hanif Osman 5 Mrs.Farzana Hanif Osman 6 Ms.Rizwana Abdul Razak 7 Mr.Abdul Razak Osman 8 Mrs.Shirin Iqbal W/o.Mr.Iqbal Abdullah P.O. Box No.2756 Ajman United Arab Emirates Having Residence at No.15 Rutland Gate 5th Street Nungambakkam Chennai-34 9 M/s.Hamosons A Partnership Firm rep by its Partners (Defendants 1 3 4 and 5) No.51 North Phase Guindy Industrial Estate Guindy Chennai-97 10 The Registrar Debts Recovery Appellate Tribunal Chennai

...Respondents in WP.No.1913 of 2018

1 Indian Bank Madras George Town Branch NO.155 Thambu Chetty Street Chennai-600 001 2 M/s.H.M.Hajee Moosa 60/1 Godown Street Chennai-1 rep by its Partners a) Abdul Razak Usman and b)Mohamed Hanif Usman Mrs.Zubeida Osman (Since Deceased) 3 Nargis Abdul Razak 4 Mr.Mohammed Hanif Osman 5 Mrs.Farzana Hanif Osman 6 Ms.Rizwana Abdul Razak 7 Mr.Abdul Razak Osman

8 Mrs.Shirin Iqbal W/o.Mr.Iqbal Abdullah P.O.Box No.2756 Ajman United Arab Emirates having res. at No.15 Rutland Gate 5th Street Nungambakkam Chennai-34 9 M/s.Hamosons A Partnership Firm rep by its Partners (Defendants 1 3 4 and 5) No.51 North Phase Guindy Industrial Estate Guindy Chennai-97 10 The Registrar Debts Recovery Appellate Tribunal Chennai Prayer in W.P.No.1907 of 2018: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of certiorarified mandamus to call for the records of the DRAT with respect to the order dated 20/10/2017 in A.I.R.No.507 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits.

WP.No.1908 of 2018:Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No. 508 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. WP.No.1909 of 2018::Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No. 509 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits WP.No.

1910 of 2018:Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No. 510 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. WP.No.1911 of 2018:Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No.511 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. WP.No.

the order dated 20.10.2017 in A.I.R. No.512 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. W.No.1913 of 2018::Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No.513 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. WP.No.1914 of 2018::Writ petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus calling for the records of the DRAT with respect to the order dated 20.10.2017 in A.I.R. No.514 of 2013 and quash the same as being non reasoned illegal and arbitrary and consequentially direct the DRAT to hear the appeal on merits. For Petitioners...

Mrs.Ananda Gomathy For respondents...

Mr.Jeyesh B.Dolia for M/s. Aiyar & Dolia for Indian Bank/R.1 in all WPs.

C O M M O N O R D E R (Order of the Court was made by S.MANIKUMAR, J) M/s. Hamosons Apparels (P) Ltd., Chennai, a partnership firm, borrowed loan from Indian Bank, Chennai, first respondent. One of the co-owners of the property, comprised in land and building, situated at No.2, Old No.15, Rutlan Gate, 5th Street, Nungambakkam, Chennai 600 034, Abdul Razak Osman, Managing Partner of Hamosons Apparels (P) Ltd., offered the said property, as security, in favour of Indian Bank, Asset Asset Recovery/Management Branch, Chennai.

2. Mrs.Shirin Iqbal, writ petitioner, in W.P.Nos.1907 to 1910 of 2017, executed a Deed of Guarantee, on 13/8/1991 and stood as guarantor, but according to the petitioner, the Deed of Guarantee has not been invoked and expired. Mrs.Munira Haroon, writ petitioner, in W.P.Nos.1911 to 1914 of 2017, also stood as guarantor, for the loan availed by M/s. Hamosons and also executed a Deed of Guarantee, on 13/8/1991.

3. For the default, Bank filed O.A.Nos.1214, 1371, 1217 of 2011 and 53 of 2004, respectively, before the Debts Recovery Tribunal - II, Chennai, impleading the borrower and the above said guarantors.

4. After adjudication, the Debts Recovery Tribunal, issued recovery certificate in each of the OAs as detailed hereunder:- O.A.NO.

(BEFORE DRT) NAME OF THE BORROWER SUIT AMOUNT RECOVERY CERTIFICATE DRAT APPEAL CONDITIONAL

ORDER

AMOUNT PAID BY BORRO -WER O.A.No.121 Hamasons Apparels (P) Ltd 80,6 1,223.27 + 59,73,682 1,11,34,944 2.51 crores with interest 459/2013 8,00,000/ O.A.No.137 Hamosons 17.21 laks 61.00 lakhs 457/2013 4,50,000/ O.A.No.121 Hanif Bros 31.31 lakhs 33.64 lakhs 458/2013 8,00,000/ O.A.No.53 of 2004 H.M.Haje e Moosa 4.86 lakhs 32 lakhs 460/2013 1,25,000/

5. Material on record discloses that being aggrieved by the final orders made in each of the original Applications, the borrower and guarantor have filed A.I.R.Nos.457 of 2013 to 460 of 2013, respectively.

6. Mrs. Shirin Iqbal, guarantor/writ petitioner in W.P.Nos.1907 to 1910 of 2018, filed I.A.Nos.855 to 858 of 2013 in A.I.R.Nos.507 to 510 of 2013 for waiver of predeposit. Mrs.Munira Haroon/writ petitioner in W.P.Nos.1911 to 1914 of 2018, filed I.A.Nos.871 to 874 of 2013, for waiver of pre-deposit.

7. Vide order, dated 21/9/2017, Debts Recovery Appellate Tribunal, Chennai, directed the appellants, viz., Mrs.Shirin Iqbal and Munira Haroon, to make a pre-deposit of Rs.8 lakhs, with the Registrar of the Tribunal, within a period of four weeks, from 21/9/2017. Debts Recovery Appellate Tribunal, Chennai, has further directed that in the event of failure in complying with the order on pre-deposit, the appeals shall stand dismissed, automatically without any further reference to the Tribunal and posted the matters, on 20/10/2017, for confirmation.

8 .

Subsequently, on 20/10/2017, Debts Recovery Appellate Tribunal, has dismissed the appeals as hereunder:- "Appellant counsel fairly concedes that he has not complied with the orders on predeposit and prays for some more time as they have preferred writ before Hon'ble High

Court.

In view of the fact that DRAT cannot entertain any appeal filed by any aggrieved person unless and until the appellant complies with the formalities on pre-deposit, also no stay order from Hon'ble High Court is produced today.

As pre-deposit is not complied with, hence appeal stands dismissed for want of compliance on pre-deposit.

It is made clear that if any direction is passed by Hon'ble High Court, this Tribunal will take up the matter suo-moto or by an application, as the case may be, for compliance."

9. Being aggrieved by the dismissal of the appeals, Mrs.Shirin Iqbal, has filed W.P.Nos.1907 to 1910 of 2018 and Mrs.Munira Haroon has filed W.P.Nos.1911 to 1914 of 2018.

10. One of the contentions raised in the instant writ petitions to set aside the orders impugned is that when the borrowers, had already made a pre-deposit of Rs.8 lakhs, as directed by the Debts Recovery Appellate Tribunal, there is no need for a direction to the guarantors, to make pre-deposit of Rs.8 lakhs, in each of the appeals, preferred by them.

11. By inviting the attention of this Court to the amount mentioned in the Debts Recovery Tribunal Certificate Rs.32 lakhs, submission was made that direction to the guarantors to make pre-deposit of Rs.8 lakhs each with the Registrar of the appellate forum, in addition to the direction issued to the borrowers to deposit would exceed the amount mentioned in the Debts Recovery Certificate.

12. It is also the contention of the learned counsel for the petitioners that the Tribunal has mechanically passed orders, both in I.As and A.I.Rs, without considering the contention of the guarantors that the conditional order has been complied with.

13. On the above submissions, yesterday, when the matter came up for hearing, we directed Ms.Ananda Gomathy, learned counsel for the petitioners, to file necessary documents to substantiate deposit made by the borrower.

14. Proceeding of the Debts Recovery Appellate Tribunal, dated 21/9/2017, in A.I.R.Nos.457 to 460 of 2013, submitted today, as proof of compliance by the borrower, are extracted hereunder:-

CASE No.

CAUSE TITLE PROCEEDINGS A.I.R.No.457 of 2013 M/s. Hamosons & Ors Vs. Indian Bank & Ors Ld.

Counsel Mr.K.Krishnamoorthy for Appellants present.

A.I.R.No.458 of 2013 M/s. Hanif Bros & Ors Vs. Indian Bank & Ors A.I.R.No.459 of 2013 Ld.

Counsel Mr.M.P.Balasubramani an for R.1 Bank present.

M/s.

Homosons Apparels (P) Ltd & Ors Vs. Indian Bank & Ors A.I.R.No.460 of 2013 Order of Pre-deposit has been complied.

M/s. H.M.Hajee Moosa & Ors Vs. Indian Bank & Ors.

Registry is directed to number the appeal.

In view of the fact that order on predeposit has been complied with, parties are directed to maintain statusquo.

List for final hearing on 15/11/2017.

15. Perusal of the proceeding, dated 21/9/2017, by the Debts Recovery Appellate Tribunal, Chennai, directing predeposit of Rs.8 lakhs, with the Registrar of the Tribunal shows that though a contention has been made by the learned counsel for the guarantors that the borrower has also challenged the final order made in S.A.No.37 of 2007 and complied with the pre-deposit and that there is no need for the guarantors, once again, to make pre-deposit, Debts Recovery Appellate Tribunal, Chennai, has not considered the said submission at all, on the other and, only taken note of the fact that the DRC is pending for Rs.32 lakhs and hence directed the guarantors, to make pre-deposit of Rs.8 lakhs, in each of the appeals filed.

16. Without adverting to the submission that pre-deposit has already been made by the borrowers, order has been passed. There cannot be any repetition of pre-deposit.

17. For the reasons stated supra, we are of the view that the order impugned in the instant writ petitions, deserve to be set aside and accordingly, set aside.

18. In the result, all the writ petitions are allowed. Registrar of the Debts Recovery Appellate Tribunal, Chennai, is directed to scrutinise the appeals filed by the guarantors, assign regular appeal numbers, if they are otherwise in order and place the same before the Debts Recovery Appellate Tribunal, Chennai, as expeditiously as possible. No costs. mvs.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar TO

1. Indian Bank Madras George Town Branch No.155 Thambu Chetty Street Chennai 600 001.

2. The Registrar Debts Recovery Appellate Tribunal Chennai.

+1cc to M/s.Ananda Gomathy, Advocate Sr.No.13580 +1cc to M/s.Aiyar & Dolia, Advocate Sr.No.13533 SSV(co) sm:22.3.2018 W.P.Nos. 1907 to 1914 of 2018