Application for interim stay in an appeal regarding SARFAESI Act proceedings. The tribunal denied the stay as the appellant failed to provide authority for DRT/DRAT to set aside orders of District Magistrate/CJM under Section 14.
Stay application disposed of without granting stay; main appeal adjourned to 12.12.2022.
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IN THE DEBT RECOVERY APPELLATE TRIBUNAL AT CHENNAI
IA 474/2022 In R.A(S.A) 48/2022
K.Nagarajan V/S A.O.,Tamilnad Mercantile Bank Ltd & Anr
28/11/2022
Counter of R1 and R2 filed today.
This application is filed seeking stay of all further proceedings in pursuance of dismissal order dated 13.10.2022 in SA 432/2021 on the file of DRT, Coimbatore. Main Appeal i.e. RA(SA) 48/2022 is filed to set aside order dated 13.10.2022 in SA 432/2021. Both respondents filed their counter.
When this application came up for hearing today and when the advocate for appellant was requested to argue main appeal instead of stay application, Ld. Counsel argued that when so much money is paid towards pre-deposit, this Tribunal is bound to follow certain practice and custom and grant stay. I am not in agreement with the above submission of Ld. Counsel for appellant.
Ld. Counsel for appellant submitted that Chief Judicial Magistrate, while passing order under Section 14 of SARFAESI Act has not followed the provisions of SARFAESI Act and the Rules made thereunder, therefore, the said order has to be set aside. Then, this Tribunal asked the advocate for appellant to show law, under which, this Tribunal by exercising power under Section 18 or DRT, by exercising power under Section 17, can set aside orders of District Magistrate or Chief Judicial Magistrate, as the case may be, passed under Section 14 as main SA is filed to set aside order of
CJM dated 17.5.2021 in Crl.M.P. No.747/2021. Advocate for appellant referred to decisions of Hon’ble High Court of Madras, in re, Hotel Amuthas Vs. District collector, Coimbatore & Others reported in IV (2015) BC 435 (DB) (Mad.), Honble High Court of Mumbai, in re , Bank of Maharashtra Vs. Addl. District Magistrate & Others reported in I (2018) BC 86 (DB) (Bom.) and Hon’ble High Court of Telangana, in re , Anantha Reddy Nadeaguoni & another Vs. Union of India &
Others reported in III (2017) BC 482 (DB) (T & AP), wherein High Courts set aside orders of DM/CJM passed under Section 14 of the Act. In all above decisions, Hon’ble High Courts were pleased to set aside orders of DM/CJM under Writ Jurisdiction but not held that DRT/DRAT can set aside orders of DM/CJM. When advocate for appellant is specifically asked to show power of DRT/DRAT under Sections 17 and 18 of the Act along with supporting judgments to show that DRT/DRAT can set aside orders of DM/CJM, advocate for appellant failed to show any judgment or provision on the subject empowering DRT/DRAT to set aside orders passed under Section 14 of SARFAESI Act. On the other hand, Clause (3) of Section 14 specifically prohibits a party to question order of DM/CJM in any court or before any Authority.
In view of above, I am not inclined to grant stay especially when advocate for appellant is not inclined to proceed with main appeal today.
IA 474/2022 is disposed of, accordingly.
RA(SA) 48/2022:
Ld. Counsels for R1 and R2 reported ready.
At request of Ld. Counsel for appellant, posted to 12.12.2022 for arguments.
Sd/Chairperson
Colour shows how this judgement treated each authority
Hotel Amuthas Vs. District collector, Coimbatore & OthersReferred¶9
IV (2015) BC 435 (DB) (Mad.)
Bank of Maharashtra Vs. Addl. District Magistrate & OthersReferred¶9
I (2018) BC 86 (DB) (Bom.)
Anantha Reddy Nadeaguoni & another Vs. Union of India & OthersReferred¶9
III (2017) BC 482 (DB) (T & AP)
K. Nagarajan
A.O., Tamilnad Mercantile Bank Ltd & Anr
Chairperson
As recorded by the court registry
11 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
