Krishan Kumar Gupta Alias Krishan Lal v. Bank Of India And ORS

 

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CWP-24791 of 2022 (O&M) Date of decision: 28.10.2022 Krishan Kumar Gupta @ Krishan Lal

...Petitioner

Versus

Bank of India and others

...Respondents

CORAM:

HON'BLE MR.JUSTICE M.S. RAMACHANDRA RAO HON'BLE MR.JUSTICE H.S. MADAAN

Present:

Mr. Aalok Jagga, Advocate with Mr. A.P.S. Madaan, Advocate for the petitioner. M.S. RAMACHANDRA RAO , J. (Oral) Notice of motion.

Mr. Gaurav Goel, Advocate and Mr. Devender Rattan, Advocate accepts notice on behalf of respondent/caveator No.1, Mr. Akshay Jain, Advocate accepts notice on behalf of respondent No.2, and Mr. Harsh Garg, Advocate with Mr. Pulkit Goyal, Advocate accepts notice on behalf of respondent No.3.

Counsel for the petitioner states that he does not press for any relief against respondent No.4. Therefore, respondent No.4 is deleted as party respondent in the matter.

Petitioner is aggrieved by the order passed by respondent No.5 on 28.09.2022 in SA-59-2021. The said SA was filed seeking the following reliefs:-


 
  


  
   

   
   




   


  


   



 





 
   




  

     

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  The petitioner had filed an interim application in the SA. The petitioner had also sought interim relief for staying the sale to be held by respondent No.1-Bank pursuant to an auction cum sale notice dt. 12.02.2021.

After hearing the counsel for the petitioner, interim relief was granted on 16.03.2021, staying the auction cum sale pursuant to the notice dt. 12.02.2021 till further orders. Thereafter, IA-522-2022 was filed by respondent No.1 for vacating the said order. On 05.09.2022, arguments were heard in the IA-522-2022

  for vacation of the stay, and a docket order was passed that the matter would be listed on 06.09.2022 for pronouncement of the order on the said IA.

The matter was then taken up on 20.09.2022, and adjourned to 22.09.2022 again for hearing arguments in the IA. Then on 28.09.2022, respondent No.5 not only allowed IA522-2022 filed by respondent No.1-Bank, but went on to dismiss the SA itself as infructuous.

This is assailed in the writ petition by the petitioner. Counsel for the petitioner contends that arguments in the SA were never heard, and only the arguments in the IA were heard, and the docket dt. 05.09.2022 confirms this fact, and the Tribunal had indicated its mind only to decide the said IA, and to pronounce order in the said IA on 06.09.2022, and so the Tribunal could not have decided the main SA on 28.09.2022 without hearing argument in the SA. Though counsel for the respective respondents contend that the main SA itself was argued before the Tribunal, the docket dt. 05.09.2022 of the Tribunal does not support their contention. We are of the opinion that when the Tribunal had heard only arguments in the IA-522-2022 as evidenced by the docket dt. 05.09.2022, and intended to pronounce orders only in the IA as per said docket order, respondent No.5 could not have decided the main SA, and any submissions made by the applicant in support of the order for stay could not have been taken as arguments in the main SA. Merely looking at the

 clauses in the prayer, the Tribunal could not have proceeded to hold that the SA itself had become infructuous without noting other contentions raised including the contention raised in para No.25 of the SA regarding the mention in the sale notice of the land as freehold which is an issue pending consideration before the NCLT, and which is adverted to in the order dt. 16.03.2021 passed by respondent No.5. Anyway we are not expressing any opinion on the merits of the contentions of the parties at this stage, but we are of the opinion that the disposal by the Tribunal of the SA itself as infructuous on 28.09.2022 was not warranted when the Tribunal had heard only arguments in IA522-2022. Accordingly, the writ petition is allowed to the extent that respondent No.5 had dismissed the SA-59-2021 as infructuous; the said order to that extent is set aside. The SA is remitted back to DRT-II, Chandigarh and shall be decided by the said Tribunal after hearing both sides within three months from today.

All contentions of parties are left open for consideration. Till the SA is decided, status quo in all respects qua proceedings under SARFAESI Act, 2002 shall be maintained with regard to the secured asset.

(M.S. RAMACHANDRA RAO) JUDGE 28.10.2022 (H.S. MADAAN) sumit.k JUDGE Whether speaking/reasoned :

Yes No Whether Reportable :

Yes No