TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 1654
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....contravention of the final order and Judgment passed by this Court in W. P. No. 2/2004, whereby it had released the encumbrance over the subjected properties and extinguished the debt owned by predecessor in title towards the subjected properties, while sanctioning the scheme of compromise moved by Respondent no.5. 2. Further, challenge is to the consequent action/proceedings/coercive measures threatened to be taken by Ld. Recovery Officer, DRT, Jaipur through Respondent No. 3 against the said properties, as the same are sub-silentio and per-incuriam to the orders of this Court, which were affirmed till Apex Court. Facts in Brief: 3. On 30/11/1993 and 29/10/1994, present Respondent No.6 had entered into a Consortium agreement with State bank of India, State Bank of Bikaner& Jaipur and the Bank of Rajasthan and as per the consortium agreement State Bank of India was designated as the "Lead Bank". In pursuance to the said agreement respondent No.6 availed financial facilities in the nature of Cash Credit, letter of credit, letter of guarantee. 4. To avail the aforesaid facilities, Respondent No.6 had executed number of security documents such as Demand promissory notes, l....
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....h the modification that Respondent No.6 shall pay an amount of Rs.6 crores instead of Rs.5.5 crores and the said amount shall be paid on or before 30/04/2005. In view of the aforesaid this Court on 20/04/2005 approved/sanctioned the compromise. In the order it was observed that the approved scheme shall be binding on all the secured creditors, including the Bank of Rajasthan. 8. Thereafter, on 02/05/2005, a compliance affidavit was filed by Respondent No.6 before this Court categorically indicating compliance in relation to the payments made to the secured creditors, including Bank of Rajasthan. In the affidavit it was mentioned that on 29/04/2005, Respondent No.5 was tendered with a Demand Drafts No.686933 and 406576 amounting to Rs.43.55 Lakhs and since till date Respondent No.5 had not agitated the said fact before any forum, it can be presumed that Respondent No.5 is in receipt of the amount, as stipulated in the scheme. 9. Immediately, thereafter, respondent No.6 on 12/05/2005 moved an application before DRT, Jaipur in the original application filed before it, seeking its dismissal on the ground that the scheme as approved/sanction by this Court had been complied with, t....
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.... from respondent No.6. Property situated at survey No. 296, Village Kusmoda, Ward No.218, Guna was purchased by way of a sale deed dated 11/12/2008, lease deed's dated 18/11/2008 and 05/01/2009 in relation to khasra No's. 10 & 12, admeasuring 2.71 Hect. and 1.29 Hect. and plot No. 298-B admeasuring 2 Hect. situated at Haripura, District Baran, Rajasthan and village Kusumoda, Guna, M.P. were executed on 18/11/2008 and 05/01/2009 resp. 14. On the basis of the legally executed and registered instruments RSIL became the lawful owner of the said properties and continued to remain in possession and ownership, without there being any challenge. 15. In the meanwhile, on 28/10/2010 Reserve Bank of India allowed amalgamation of Bank of Rajasthan and ICICI Bank Ltd. and thus, ICICI Bank Ltd. became the Applicant in the Original Application proceedings and thereafter, on 20/05/2014 Respondent No.5 assigned its debt in relation to impugned proceedings in favour of Respondent No.4 i.e. ICICI Bank Ltd. 16. On 05/08/2015 Supreme Court dismissed the Civil Appeal's No.7064-7065/2005 filed by Respondent No.5 holding that since the scheme was sanctioned by 90% of the creditors, the question r....
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....ficate was issued against it, for an amount of Rs.14, 95, 22, 820/- and it was ordered that respondent No.5 could recover the debt from the sale of mortgage properties, which included the properties which were in the possession and ownership of the Petitioner. Later on, on 17/12/2019 Ld. DRT modified its own order dated 16/09/2019 to the extent that the amount directed to be paid under the RC shall be 2, 29, 94, 478/- with 10% interest instead of Rs.14, 95, 22, 820/-. 19. On 26/08/2022 Ld. Recovery Officer in Recovery Case No.861/2019 appointed one Shailendra Singh Sisodiya as receiver, who issued a notice dated 13/09/2022 to respondent No.6, seeking delivery of physical possession of the properties, held by Petitioner. Immediately after receiving the said notice Petitioner on 28/09/2022 moved an application before the Recovery Officer seeking intervention. In parallel Respondent No.6 also preferred a review petition No. RA/14/2022 before DRT for recalling its order dated 16/09/2019. On 16/12/2022, the Petitioner also filed objections before Recovery Officer and sought stay of the auction proceedings in relation to the properties owned by the Petitioner in view of the finality o....
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....d continue or not, (ii) the whole question is whether the properties belong to the Petitioner or to Respondents No.4/5, (iii) principles of IB Code, 2016 has no bearing on the matter, (iv) if Respondents No. 4/5 had breached the scheme sanctioned, the same can be agitated before it, (v) mere copies of demand draft issued by Respondent No.6 is no proof of payment. 25. Since the above facts clearly established that the effect of the order dated 20/04/2005 passed by this Court, despite the same being confirmed upto Apex Court, had been entirely ignored and over reached by Respondents No.4/5 and acting in concert had sought to enforce the encumbrance and debt which was specifically dissolved and closed by this Court. The Respondent No.3 had also passed orders which are contrary to the mandate of the said judgment of this Court, thus, in view of the above facts the Petitioner had preferred the present Petition. 26. A reply had been filed in the matter on behalf of Respondent No.5 and as preliminary objections it had been averred that the present Writ had been filed only against the actions of respondents No.4/5 and since both do not fall under the definition of State as envisaged ....
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....was one of the creditors of Respondent No.6 and Respondent No.6 had preferred a petition under section 391 of the Companies Act, 1956, for approval of the scheme of compromise with its creditors and as Bank of Rajasthan absented from voting on the scheme of compromise since it was not satisfied with the conditions of the settlement, but as an order u/s 391 of the Companies Act, 1956 has a statutory force and is binding on the dissenting creditors, therefore, DRT has no jurisdiction to proceed with the matter pending before it, but said contentions of the petitioner are factually incorrect and legally untenable, since the conditions which were accepted by the Court were never complied by Respondent No.6. Further in the proceedings before DRT Respondent No.6 though had appeared through Counsel but had never raised any objections that the payment had been made to Bank of Rajasthan and they had complied the terms of settlement and since neither the scheme was accepted by the Bank of Rajasthan nor as per the scheme any amount has been deposited by Respondent No.6, hence the successors of Respondent No.6 i.e. the Petitioners are not entitled for any relief, thus, it was prayed that the p....
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.... exists no ground to file the present petition, it was averred that the Petitioner is not only challenging the proclamation of sale rather is also challenging the proceedings of the DRT, therefore the Writ is very well maintainable. 36. With regard to the objection that the writ petition deserves to be dismissed as the Petitioner has an alternate remedy of appeal to appellate tribunal u/s 20 of the Act of 1993, it was averred that the Petitioner herein is not challenging the orders of DRT rather is challenging the veracity of the proceedings which continued even after sanctioning of the settlement scheme by this Court u/s 391 of Companies Act, 1956 and affirmed by the Apex Court, thus, continuation of the proceedings before DRT is in utter derogation of the orders of this Court and thus, are liable to be quashed. 37. It is also averred that Respondent No.6 had filed a compliance affidavit dated 02/05/2005, wherein it has been categorically mentioned that respondent No.6 had tendered two demand drafts vide No. 686933 dated 27/04/2004 for Rs.42.87 Lakhs and DD No.406576 dated 27/04/2005 for Rs.66 Lakhs, totaling Rs.43.53 Lakhs and the payment was realized on 29/04/2005 and in t....
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....re DRAT, as per the provisions of section 34 of Act of 1993, the RBD Act has an overriding effect over any other Law and therefore, the petitioner is bound to comply with the provisions of RBD Act. Further, neither Petitioner or Respondent No.6 after passing of the order in the company matter by this Court in the year 2005 had ever stated that the orders are not being complied with by either Bank of Rajasthan or Respondent No.5, on the contrary the Petitioner/Respondent No.6 had taken part in the proceedings before DRT, Jaipur but without any protest, which proves that the proceedings before DRT, Jaipur were not illegal, thus, implying the theory "Once a mortgage always a mortgage until redeemed", since the mortgage over the property had still not been redeemed, Respondent No.5 is entitled to recover its outstanding dues from the Petitioner through the mortgaged properties. 41. Heard the Counsel for the parties and perused the record. 42. The first and foremost objection taken by Respondent N.5 which needs to be addressed is with regard to the writ being not maintainable as no relief had been claimed against the State and Respondents No. 4 & 5 do not fall under the definition....
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....CC 107], this Court noted that: (Harbanslal Sahnia case, SCC p. 110, para 7) "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act 10 is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1].) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such ....
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....eged contravention of the final order dated 20/04/2005 passed in Company Petition No. 2/2004, whereby it is stated to had released the encumbrance over the said properties and had extinguished the debt owned by predecessor owner towards the property, while sanctioning the scheme of compromise. Since said action/proceedings of DRT, Jaipur, against the subjected property is challenged alleging it to be sub-silentio and per incuriam to the orders passed by this Court and the Apex Court, no bar as such of alternative remedy arises. Secondly, since the subject matter of the present writ is immovable properties which are situated within the jurisdiction of this Court, therefore, this Court has jurisdiction and since a substantial and meaningful part of cause of action had arose within the jurisdiction of this Court, as the conveyance deed vide by which the subjected properties are conveyed to the Petitioner, which are now sought to be rendered nugatory, were executed within the jurisdiction of this Court and as the impact of alleged arbitrary, coercive actions of threatening by Respondents No. 3 to 5 is operating over properties situated at Madhya Pradesh, this Court has territorial juri....
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....hs, the total due of Bank of Rajasthan, who was in proper receipt of the amount as stipulated in the scheme. 47. Though the said amount had been alleged to have been paid to Bank of Rajasthan through demand draft, except for the statement there is no documentary evidence as to handing over of the said demand drafts to Bank of Rajasthan through any mode had been placed on second and also there is no material to show that the said amount was credited to the account of the Bank, as this fact had been denied by Respondents No. 4 & 5, coupled with the fact from the recitals of the sale deed dated 11th of December, 2008, which was executed after the so called payment to Bank of Rajasthan by Respondent No.6, the amount due to Bank of Rajasthan after compromise was still outstanding. Relevant extract of sale deed is reproduced herein below: "AND WHEREAS Seller has informed the purchaser that the case filed by the Bank of Rajasthan Ltd. Challenging the order of Madhya Pradesh High Court dated 06/09/2005 is still pending in the Supreme Court of India. AND WHEREAS the Seller has further informed that notwithstanding the pendency of the above mentioned case, it is negotiat....