Partly allowed

Hdfc Bank v. Tolaram Jain and Sons (Huf)

DRAT18 Sept 2023MISC APPEAL/21/2023

Case brief

AI extract

What is this about?

In this miscellaneous appeal, the Tribunal condoned the delay in filing. It allowed the appeal, setting aside the impugned order that vacated an interim status quo without notice. The Tribunal directed the DRT to dispose of the underlying matter expeditiously in compliance with the Calcutta High Court's order.

What did the court decide?

The appeal is allowed and the impugned order dated 01.05.2023 is set aside. The matter is returned to the DRT to be decided on 27.09.2023 without adjournment.

Hdfc Bank versus Tolaram Jain and Sons (Huf) — Banking and Recovery | DRAT (2023)

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IN THE DEBTS RECOVERY APPELLATE TRIBUNAL AT KOLKATA

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Misc. Appeal Dy. No. 545 of 2023

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(Arising out of Appeal No. 01 of 2019 in DRT- 1 Kolkata)

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THE HON’BLE MR. JUSTICE ANIL KUMAR SRIVASTAVA CHAIRPERSON

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HDFC Bank Ltd, Department of Special Jardine House, 1^st Floor, 4, Clive Row, Kolkata -700001

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…Appellant

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-Versus-

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Tolaram Jain & Sons (HUF) represented by its Karta Shri Surendra Jain 18, R.N. Mukherjee Road, 6^th Floor, Kolkata -700001

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Jagdish Prasad & Sons (HUF) represented by its Karta Shri Kamalesh Kumar Jain 18, R.N. Mukherjee Road, 6^th Floor, Kolkata -700001

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Rajendra Kumar Jain (HUF) represented by its Karta Shri Prateek Saraogi, 18, R.N. Mukherjee Road, 6^th Floor, Kolkata -700001

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Sanwar Mal Jain & Sons (HUF) represented its Karta Shri Sanwar Mal Jain 18, R.N. Mukherjee Road, 6^th Floor, Kolkata -700001

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M/s. Kanoria Plastics Pvt. Ltd. Marshall House, 33/1, N.S. Road. 6^th Floor Room No. 661, Kolkata -700001.

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Mr. Vimal Kumar Kanoria, Marshall House, 33/1, N.S. Road. 6^th Floor Room No. 661, Kolkata -700001.

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Mrs. Pushpa Kanoria, Marshall House, 33/1, N.S. Road. 6^th Floor Room No. 661, Kolkata -700001.

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Mr. Ajay Shankar Roy,46/8, Ballygunge Place, Kolkata -700019 and also at 5/1-B, Ballygunge Place (East) Kolkata -700019.

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… Respondents

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Counsel for the Appellants Mr. Samik Basu, Ms. Mekhala Kanji, Learned Advocate Counsel for the Respondents Mr. Debasish Karmakar, Mr. Ashish Chowdhury, Ms. Muskan Bangani, Learned Advocate

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JUDGMENT

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: 18^th September, 2023

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THE APPELLATE TRIBUNAL

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I.A. No.338 of 2023 application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. Opposed by the Learned Counsel for the Respondent. Learned Counsel for the Appellant submits that the delay is not intentional.

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2. Having considered the submission made by the Learned Counsel for the Appellant, I found the ground to be sufficient. Accordingly, I.A. No. 338 of 2023 is allowed. Delay in filing the Appeal is condoned. Let the Appeal be registered as regular appeal by providing a regular appeal number.

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3. Heard the Learned Counsel for the parties and perused the record. Impugned order is dated 1^st May, 2023 whereby the Learned DRT disposed of the I.A, No. 2309 of 2019 and fixed the date of hearing on 14^th July, 2023. Further, Learned DRT vacated the interim order of status quo dated 28.08.2019.

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4. Feeling aggrieved by the impugned order, Appellant preferred the Appeal.

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5. Learned Counsel for the Appellant submits that although there was an order of the Hon’ble Calcutta High Court dated 25^th September, 2019 passed in C.O. No. 3358 of 2019 M/s Tolaram Jain & Sons (HUF) Vs. HDFC Bank Ltd. & ors wherein the Hon’ble High Court has directed the DRT

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to dispose of the Appeal No. 01 of 2019 by the next date fixed without granting any unnecessary adjournment. Further direction was issued for expeditious disposal of the matter. It appears that in spite of that, the matter could not be disposed of by the Learned DRT. It appears that the matter was listed before the Learned DRT on different dates, but was not disposed of. Lastly it was listed on 05.01.2023. But was adjourned for 13^th February, 2023 as no time left. Thereafter on 13.02.2023 it was adjourned for 21.02.2023. On 21.02.2023 it was adjourned for 14^th July, 2023. It shows that there was no date fixed in the matter for 01.05.2023. There is nothing on record to show as to how the matter was taken up by the Learned DRT on 01.05.2023 although on that date Learned Counsel for the Respondent Nos. 1 to 4 in the Appeal No. 01 of 2019 were present. But none was present for HDFC Bank. Learned DRT further considering the order of the Hon’ble High Court again adjourned the matter for 14^th July, 2023 but vacated the interim order of status quo dated 28.08.2019.

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6. When the matter was not listed on 1^st May, 2023 how it was taken up by the Learned DRT. No doubt there is an order of the Hon’ble Calcutta High Court for expeditious disposal of the matter. Learned DRT was under a legal obligation to comply the order of the Hon’ble High Court in its true spirit, but the order sheet shows that the matter was not taken up due to one or the other reasons which is not the compliance of the order of the Hon’ble High Court.

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7. However, the matter was taken up on 1^st May, 2023. Cause list shows that the matter was listed as a put up matter. But there is no mention in the impugned order that the matter was taken up as a put up matter. Learned DRT has taken up I.A. No. 2310 of 2019 on 1^st May, 2023. Cause list shown by the Learned Counsel for the Respondent would also show that even the name of the Learned Counsel for the parties are not printed in the cause list. Then how the Appellant could know that the matter is listed on 1^st May, 2023 on the basis of a put up application which was filed in the year 2019. A wrong procedure is followed by the Learned DRT which is neither legal nor permissible under the Rules. It is settled legal proposition that whenever any matter is listed before the Tribunal, due notice of the same should be given to the parties for hearing. Without giving any notice to the parties if any order is passed, it is an exparte order which is the excessive exercise of jurisdiction vested in the Learned DRT.

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8. Perusal of the impugned order will show that even on 1^st May, 2023, Learned DRT was conscious enough about the order passed by the Hon’ble High Court but did not take any step for the disposal of the Appeal, rather again adjourned the matter for 14^th July, 2023 and also vacated the interim order of status quo passed on 28.08.2019. It was against the record as well as the law. I do not find any reason or ground for vacating the interim order in the absence of the Appellant on the date fixed before the Learned DRT. That

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too, when the case was not listed for 01.05.2023. It was taken up by the Learned DRT suo motu without any notice to the Bank. Even on that date, again it was adjourned for 14.07.2023 despite the fact that there is an order of Hon’ble High Court for expeditious disposal. Hence, order of vacating interim order of status quo cannot sustain Accordingly, to that extent the impugned order is liable to be set aside. Accordingly, Appeal deserves to be allowed.

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Order

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Appeal is allowed. Impugned order dated 01.05.2023 is set aside. However, in view of the orders passed by the Hon’ble Calcutta High Court in C.O. No. 3358 of 2019, Learned DRT is expected to comply the directions of the Hon’ble High Court in its true spirit and should decide the matter on the next date of listing i.e. on 27.09.2023 without granting any adjournment to either side on any ground whatsoever it may be. If any adjournment is sought by any party, Learned DRT should dispose of the Appeal on merits.

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No order as to costs.

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File be consigned to Record Room.

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Copy of the order be supplied to Appellant and the Respondents and a copy be also forwarded to the concerned DRT.

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Copy of the Judgment/ Final Order be uploaded in the Tribunal’s Website.

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Order signed and pronounced by me in the open Court on this the 18^h day of September, 2023.

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(Anil Kumar Srivastava,J) Chairperson

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Dated: 18^th September, 2023 4/tp

Hdfc Bank v. Tolaram Jain and Sons (Huf)

Case brief

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Hdfc Bank v. Tolaram Jain and Sons (Huf)

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