TaxTMI 
TaxTMI 
2017 (12) TMI 394
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.... of Debts due to Banks and Financial Institutions (RDDBFI) Act, 1993, the recovery proceedings were transferred to the Recovery Officer, Debt Recovery Tribunal (DRT), Pune and registered as R.P. No. 06/2002. After attachment of the property, the property was auctioned on 08.03.2006. By order of DRT dated 14.07.2006, certificate of sale was issued in favour of auction purchasers-respondents No. 3 to 5. Since the Certificate Debtors (Mortgagor/Guarantor) were said to be creating obstruction in delivery of possession of the property to the auction purchasers, by order dated 26.07.2006, the Recovery Officer, DRT, Pune appointed respondent No.1 as "Court Commissioner". The appellant Bank was directed to pay service charges to the first respondent. Respondent No. 1 took possession of the property on 09.11.2006. Auction purchasers filed an application in R.P. No. 06 of 2002 on 13.11.2006 and DRT, Pune on the same date i.e. 13.11.2006 directed respondent No. 1 to hand over the possession of the subject property to the auction purchasers. 3. There was then a dispute between the appellant Bank and M/s Sona Aluminium Finishers (P) Ltd. - Certificate Debtor and the same came to be compromis....
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.....2013 in Writ Petition No. 2877 of 2013 filed by the appellant Bank, the High Court stayed the order of the District Judge, Pune passed in DKT No. 1741 of 2012, subject to deposit the entire decretal amount that is Rs. 1,93,22,590/- within one week with the Registrar, High Court of Judicature at Bombay and the appellant Bank had deposited the said amount. Appeal filed by the appellant Bank under Section 34 of the Arbitration and Conciliation Act, 1996 being Civil Application No. 352 of 2013 was dismissed by the District Judge, Pune vide order dated 16.06.2014. Further appeal filed by the appellant Bank under Section 37 of the Arbitration and Conciliation Act, 1996 in Arbitration Petition No. 15 of 2014 came to be dismissed by the High Court inter alia on various grounds:- (i) DRT has no jurisdiction to entertain the appeal and therefore order dated 24.07.2008 would be non est; (ii) MSMED Act, 2006 was specially enacted to deal with dispute of delayed payments to service providers and the MSMEDF Council had jurisdiction to adjudicate the dispute; and (iii) Bank has not taken any step to take possession from Court Commissioner after paying the charges; but it has simply refused to pa....
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....y have also issued acknowledgement of possession. On the same date i.e. 13.11.2006, purshis on behalf of the auction purchasers was also filed in R.P. No. 06 of 2002 before DRT in and by which the auction purchasers undertook to pay all expenses as required to protect their possession. Purshis of expenses filed by the auction purchasers reads as under:- "Purshis of expenses Purshis on behalf of auction purchaser is as under: a) That from the time of taking possession i.e. 13.11.2006 of auctioned property as purchased i.e., "Pavitra Hall", the Auction Purchaser shall bear all the expenses as may be required to protect their possession, including payments if required to be made to the security personnel. That the Auction Purchaser shall be liable accountable & duty bound to safeguard the possession to the exclusion of all others b) Hence this purshis." 8. The appellant Bank sent the communication to the first respondent on 04.05.2007 calling upon him to get his bill cleared for Rs. 30,866/- being the charges for security services at "Pavitra Hall" up to 08.05.2007. In the said communication, Bank had made it clear that ".....no further payment w....
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.....The Auction Purchasers have not filed any application to discharge the said Agency, therefore, they have opted to continue the services, of the said Agency, in exercise of their discretion and in furtherance of their Exh 225. This Tribunal would therefore not be inclined to accept the prayer of CH to discharge the said Agency, as doing so is likely to prejudice the Auction Purchaser's rights, in the matter of preservation and protection of the auctioned property, and violation of their rights, and discretion, as the CH has no concern in the preservation or protection of the auctioned property from 13.11.2006 i.e., since the Auction Purchasers having filed Undertaking at Exh 225. 9..........The status of the said Agency as "Court Commissioner" appears to be lost from 13.11.2006, as thereafter the "Court Commissioner" appears to have continued to safeguard the auctioned property for and on behalf of the Auction Purchasers, in furtherance of their private arrangement, particularly in light of Exh 225 of the Auction Purchaser. The term "Court Commissioner" as used by CH in its application Exh 308 therefore is a misnomer. The said Agency from 13.11.2006 does not a....
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....by it ...... would be non est and hence must be ignored." In our view, the High Court did not keep in view that the respondent No. 1 had not challenged the order of DRT dated 24.07.2008; and had acquiesced to the said order dated 24.07.2008 and also acted upon it. As discussed earlier, the subsequent proceedings clearly show that respondent No. 1 and other parties have accepted the order of DRT dated 24.07.2008 and acted upon it. The findings of the High Court that DRT had no jurisdiction to entertain the appeal against the order of Recovery Officer cannot be sustained. 12. Next question falling for consideration is whether in the facts of this case, the Micro, Small and Medium Enterprises Development Act, 2006 would apply. As discussed earlier, the proceedings were conducted before DRT under RDDBFI Act, 1993 which finally culminated in DRT's order dated 24.07.2008 and had become final and binding and was also accepted and acted upon by respondent No.1. As per Section 5 of the RDDBFI Act, the Debt Recovery Tribunal is headed by the Presiding Officer who is or has been or is qualified to be a District Judge. Likewise, as per Section 10 of the said Act, the Appellate Tribunal ....