Dismissed

Ing Vysya Bank Ltd., v. Mukesh Kumar

Telangana HC27 Aug 2012WP/27307/2011

Case brief

AI extract

What is this about?

The High Court dismissed the bank's writ petition challenging the Debts Recovery Appellate Tribunal's order remanding the matter to the Debts Recovery Tribunal. The Court held that Section 20(4) empowers the appellate tribunal to remand cases and affirmed Section 17's application and Section 13(13)'s scope regarding agreements of sale.

What did the court decide?

The Debts Recovery Tribunal, Hyderabad was directed to dispose of the matter within two months from the date of the order.

Ing Vysya Bank Ltd., Vs Mukesh Kumar — Banking and Recovery | Telangana HC (2012)

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT PETITION NO.27307 OF 2011

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Dt: 27-08-2012.

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Between:

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ING VYSYA BANK LTD NIZAM SHAHI ROAD, HYDERABAD

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REP. BY ITS AUTHORISED OFFICER .. PETITIONER

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AND

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MUKESH KUMAR AND OTHERS .. RESPONDENTS

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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

¶10

WRIT PETITION NO.27307 OF 2011

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ORDER: (Per THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE)

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This writ petition is filed by the petitioner-Bank praying to issue a Writ of Certiorari calling for the records relating to RA(SA)No.62/2010 on the file of Debts Recovery Appellate Tribunal, Chennai and to quash the said proceedings as the same are not maintainable and to declare the action of the said Tribunal in entertaining of such appeal without fulfilling the conditions mandated in the provisions of Section 18 of the SARFAESI Act, 2002 and remanding the SA No.97/2009 to the Debts Recovery Tribunal, Hyderabad as illegal, high handed and without jurisdiction and consequently to set aside the said proceedings including the orders passed in the said RA(SA)No.62/2010, dated 18.8.2011.

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We have heard learned counsel appearing for the parties.

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The first point tried to be urged before us is that the Debts Recovery Appellate Tribunal, Chennai has no authority to remand the matter back before the Debts Recovery Tribunal, Hyderabad. We have considered Section 20 of SARFAESI Act, 2002 and it appears to us that under Section 20(4) of the said Act, the appellate Tribunal may, after giving parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming or modifying or setting aside the order under appeal. Therefore, we do not find any reason to hold that the remand order so passed by the appellate Tribunal can be treated to be bad in law. On the contrary, we find that the appellate Tribunal has power to pass “such orders

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thereon as it thinks fit” would also cover to remand the matter before the Debts Recovery Tribunal, Hyderabad. Accordingly, we do not find that there is any force in such submission made on behalf of the writ petitioner before us.

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The other contention which has been tried to be raised before us is that the applicant could not have filed an application under Section 17 of the Act before the Debts Recovery Tribunal, Hyderabad, as he has no such right to file such an application as the said applicant is merely holding an agreement of sale from the borrower. In our opinion, any party, if affected, by any order so to be passed shall be at liberty to apply before the Tribunal under Section 17 of the said Act.

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Further point, which is tried to be urged before us is that the agreement of sale is to be declared as null and void under Section 13(13) of the said Act. An agreement for sale, is not prohibited by the said provision and if at all entered into that would be subject to the mortgage already created by the borrower in favour of the Bank and therefore cannot curtail the rights of the banks in any manner whatsoever. Therefore, such contention to declare such an agreement of sale as null and void also is not tenable.

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We further find that the appellate Tribunal has found that the Debts Recovery Tribunal had not considered merits, hence remanded the matter only on merits and found in favour of respondent on the question regarding Section 13(13) as well as Section 17 of the said Act. Therefore, in our opinion, the remand order is justified.

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In the circumstances, we only direct the Debts Recovery Tribunal, Hyderabad to dispose of the matter in question within a period of two months from the date of this order.

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This writ petition is disposed of on the above terms.

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( PINAKI CHANDRA GHOSE, ACJ )

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Dt: 27-08-2012.

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( VILAS V.AFZULPURKAR, J )

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TNB

Ing Vysya Bank Ltd., v. Mukesh Kumar

Case brief

What is this about?

What did the court decide?

Ing Vysya Bank Ltd., v. Mukesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

Parties & counsel

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