The Appellate Tribunal dismissed the appeal against the DRIT dismissal of a Securitisation Application. The court held the appeal was not maintainable under Sec. 20(2) of the RDB Act as the original order rested on a consent application filed by appellants.
The appeal was dismissed as not maintainable.
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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson Appeal No.194/2015
Between
M/s Arham Exim Pvt. Ltd. & Ors. … Appellant/s V/s.
Bank of Baroda …Respondent/s
Mr Rajesh Nagory, i/b Ms Sanjana Ghogare, Advocate for Appellant. Mr Anant B. Shinde, Advocate for Respondent Bank.
-: Order dated: 21/12/2023:-
The important question that arises for consideration in this appeal is regarding the maintainability of the appeal which impugns the dismissal of the Securitisation Application (S.A.) No. 30 of 2012 by the Debts Recovery Tribunal-III, Mumbai (D.R.T.) vide judgment dated 15.06.2015.
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possession of flats Nos. 7 and 8, shop Nos. 20 to 22 and office premises Nos. 317 to 319 which could be sold by the bank under the provisions of the SARFAESI Act to recover the debt. The only relief that the Applicants in the S.A. sought from the Tribunal was that since six couple and their children resided in flat Nos. 29, 39 & 41 admeasuring 400 sq. ft each and interconnected, an injunction may be granted restraining the bank from taking physical possession of the said three flats immediately, as the applicants required some breathing time. It was also submitted that the applicants were not in a position to deposit any amount as a condition to stall taking over possession of those flats.
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price.
were given breathing time about the surrender of three flats Nos. 29, 39 & 41 and based on that submission, the Ld. Presiding Officer had granted 2 ½ months to the Appellants because the sale would take not less than two months to get completed. Given the surrendering of the properties and agreeing to sell them under the provisions of the SARFAESI Act, it has to be assumed that the Appellants have waived their challenges to the Sarfaesi measures raised in the S.A. under Sec. 17(1). After having waived their challenges, the Appellants cannot be heard to insist on the disposal of the S.A. on merits.
From this, it is clear that the Presiding Officer’s order is conclusive regarding what transpired before him and neither the lawyer nor the litigant can claim to contradict it, except before the very same Presiding Officer himself, but nowhere else. The Appellants did not
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contradict the submissions made in the order of the D.R.T. dated 19.01.2012 or on 25.04.2012 regarding the surrender of the properties subject to retaining three flats to get a ‘breathing time’. After having earned the indulgence shown by the D.R.T. granting two and half months to surrender the three flats while surrendering the rest of the properties and agreeing to proceed with the sale, the Appellants cannot in the stage of the appeal resile from their submissions made before the Tribunal.
The appeal has no merits and is only to be dismissed.
Sd/Chairperson
mks-01
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2 issues framed by the court
Whether an appeal is maintainable against an order made by the Tribunal with the consent of the parties under Sec. 20(2) of the RDB Act.
Whether the appellants can resile from their earlier submission agreeing to the sale of properties for the purpose of the appeal.
Colour shows how this judgement treated each authority
State of Maharashtra vs. Ramdas Srinivas Nayak & Ano.Relied on¶23
State of Maharashtra vs. Ramdas Srinivas Nayak & Ano. (1982) 2 SCC 463 · Who else cites this
M/s Arham Exim Pvt. Ltd. & Ors.
Bank of Baroda
Ashok Menon
As recorded by the court registry
8 orders share this CNR
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