Partly allowed

Svc Co. Operative Bank Limited v. Gagan Hariprasad Malpani

DRAT1 Jan 2025MISC APPEAL/221/2024

Case brief

AI extract

What is this about?

The DRAT allowed the bank's appeal impugning an interim protection granted by the DRT. The upper court held that no change in circumstances justified an injunction after earlier dismissal without explanation and the applicant had not deposited the required reserve money. The order was set aside.

What did the court decide?

Impugned order set aside. Appeal allowed. DRT directed to dispose of Summary Appeal expeditiously.

Svc Co. Operative Bank Limited versus Gagan Hariprasad Malpani — Banking and Recovery | DRAT (2025)

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BEFORE THE DEBTS RECOVERY APPELLATE TRIBUNAL, AT: MUMBAI Present: Mr Justice Ashok Menon, Chairperson

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Misc. Appeal No. 221/2024

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Between

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SVC Co-Operative Bank Ltd.

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… Appellant/s

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V/s.

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Gagan Hariprasad Malpani

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…Respondent/s

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Mr. Rajesh Nagory along with Mr. Nikhil & Ms. Shobha Chavan & Mr. Ajay D., i/b M/s. V. Deshpande & Co., Advocate for Appellant.

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-: Order dated: 01/01/2025:-

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The appellant bank is in appeal impugning the order dated 11.11.2024 in Interlocutory Application (I.A.) at Diary No. 1553 of 2024 to restrain the appellant from taking possession of the secured assets which was scheduled on 10.11.2024 under the provision of the SARFAESI Act for the recovery of the debt allegedly dues. The appellant is aggrieved and hence in appeal.

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The impugned order observes that five shop rooms which constitute a part of the secured assets are already in possession of the appellant bank and that the same can be put for sale and the amount realised and appropriated towards the debt due. It is further observed that the applicant/ respondent herein shall deposit ₹30 lakhs within two weeks and protection is granted for two months. The Ld. Counsel appearing for the appellant submits that the only part of the amount which was directed to be paid has been paid within the stipulated time but the appellant is still aggrieved by the granting of protection for the reason that earlier the applicant in the S.A. filed I.A. at Diary No. 1690 1

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of 2024 and after considering the application on its merits, the DRT was pleased to dismiss the application and declined to grant any protection for the reason that out of 11 assets which were mortgaged only 5 shop rooms were available for sale and that it would not be sufficient to satisfy the total dues which is more than ₹14 crores, and hence, this application was dismissed.

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After the dismissal of the application for interim protection, the applicant came up with another application as I.A. at Diary No. 1553 of 2024 with the same prayers. The Ld. Counsel appearing for the appellant points out from the reply that is filed in the I.A. by the bank stating that the prayers and the pleadings in both I.As are almost identical and without going into the merits of the case, the DRT had granted interim protection without any reason or there was a change in circumstances to take a different view.

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There is no dispute that once an injunction has been declined, a fresh injunction can be granted to the applicant subject to change in circumstances. From the impugned order, it does not appear that there are any changes in circumstances, which warranted granting an injunction which was earlier declined by the DRT.

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The respondent was served with notice but none appeared. 6. Heard the Ld. Counsel for the appellant. Ex facie, the impugned order is not sustainable because once an application for injunction was rejected by the DRT, and has not been challenged in appeal by the applicant in S.A., the order has become final. The applicant cannot get over the dismissal order in the earlier application by filing yet another application with the same prayers for getting it allowed without the

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DRT assigning any reasons for taking a different view. It is to be observed that any Tribunals or Courts have to be consistent in their view and if there is any inconsistency in the order, it requires an explanation. There is no explanation forthcoming in the impugned order, and it is also pertinent to note that the applicant in the S.A. has not complied with the payment of ₹30 lakhs which was directed to be paid within two weeks and therefore, the impugned order is set aside. The appeal is allowed with a direction to the DRT to dispose of the S.A. as expeditiously as possible.

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Sd/Chairperson

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mks-11

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Svc Co. Operative Bank Limited v. Gagan Hariprasad Malpani

Case brief

What is this about?

What did the court decide?

Svc Co. Operative Bank Limited v. Gagan Hariprasad Malpani

Case brief

What is this about?

What did the court decide?

What the court decided

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