Appeal dismissed order imposing costs on appellant in SARFAESI proceedings. DRT dismissed refund application as it lacked specific legal provisions. Appellant's appeal against cost imposition was allowed; main appeal against refusal of refund dismissed.
Appeal dismissed but imposition of costs of Rs. 10,000 on the appellant set aside.
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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA
(Appeal No. 48 of 2019)
(Arising out of M.A. 12 of 2017 in DRT-3, Kolkata)
THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON
| 30.06.2022 | Nibedita Ghosh … Appellant -Vs- UCO Bank … Respondent |
|---|---|
| Mr. Subhash Chandra Sarkar, Learned Counsel for Appellant |
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| Mr. S.N. Patra Bhatta with Ms. Sucharita Sil, Learned Counsel for Respondents No. 1, 2, 3 |
|
| Mr. Ajit Keshari, Learned Counsel for Respondent No. 4 |
THE APPELLATE TRIBUNAL :
Heard the Learned Counsel for the parties.
Initially a Sarfaesi Application was filed by Smt. Madhuri Gupta alias Jaiswal -vs- UCO Bank & Others before the Learned DRT-2 which was allowed on 7th November, 2013 whereby notice under Section 13 (2) as well as Possession Notice dated 29th November, 2011 along with sale conducted by Respondent No. 2 and Authorized Officer was set aside and the conveyance deed in favour of Nibedita Ghosh, who is Appellant in this appeal, was declared null and void. Bank was also directed to refund the sale price along with interest as applicable to Term Deposit within a period of forty five days. Appeal No. 422 of 2013 was preferred before DRAT, Kolkata which was dismissed on 30th March, 2017. Against the judgment of DRAT, Kolkata, a revisional application, being C.O. 1594 of 2017 with CAN
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4778 of 2017, has been preferred by the UCO Bank. It is submitted by the Learned Counsel for the parties that the revisional application is still pending. It is also not in dispute that the Appellant, i.e. Nibedita Ghosh, moved an application for impleading her as a party before the Hon’ble High Court at Calcutta, as would appear from the order sheet dated 3rd January, 2022, which is also pending.
Impugned order in this appeal dated 11th April, 2019 is to the effect that an application was moved by the Appellant before the Learned DRT-3, Kolkata for refund of earnest money as she was the bidder in the sale process. As per the Respondents, conveyance deed is executed in her favour. Learned DRT came to the conclusion that since conveyance deed has already been executed in her favour , I.A. 323 of 2019 was dismissed with cost of Rs.5,000.00.
As far as question of refund of earnest money is concerned, an application, being I.A. 72 of 2022, is moved by the Respondent No. 1 to the effect that the appeal may be adjourned till the final disposal of the C.O. 1494 of 2017 or result of the appeal may be directed to the decision of the revisional application.
As far as Order 41 Rule 11 of the CPC is concerned, Learned Counsel has placed reliance upon Section 17 Subsection 3 of the Sarfaesi Act 2002 but the same is not applicable as far as refund or the execution of the order of Learned DRT is concerned. If the Appellant wants the execution of the order of the Learned DRT there is a specific
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settled procedure which have to be followed by the Appellant. Hence, I do not find any substance in the appeal wherein even an application was not moved, as mentioned in the provision of law. It was a blank application without mentioning any provisions of law. Accordingly, the same was very rightly dismissed by the Learned DRT. Needless to say that any order passed in the proceedings would be subject to the final outcome of the result of the revisional petition pending before the Hon’ble High Court at Calcutta. However, Learned Counsel for Appellant prays for setting aside the part regarding imposing costs on two grounds; firstly by dismissing the application and secondly about the conduct of the Learned Counsel.
In views of the discussion made above, the appeal deserves to be dismissed.
O R D E R
The appeal, being Appeal No. 48 of 2019, is dismissed. However, the part, imposing of cost of Rs.10,000.00 in total, in the orders, passed by Learned DRT, are hereby set aside.
Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.
File be consigned to Record room.
(Anil Kumar Srivastava,J) Chairperson
Dated: 30th June, 2022 11/ac
2 issues framed by the court
Whether the appeal against the disposal of a refund application under the SARFAESI Act requires specific provisions of law to be mentioned.
Whether the order imposes a substantial cost on the appellant.
Nibedita Ghosh
UCO Bank
Anil Kumar Srivastava
As recorded by the court registry
4 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
