M/S. M AND S MARKETING COMAPNY v. M/S. M AND S BOTTLING COMPANY

Smt.Susheela. Though the said property was not mortgaged to the Bank, the said property was included since it belonged to Davinder Kumar, who was one of the Director of the first respondent- company. In the said OA, on 18.06.1999 an ad- interim injunction was granted against respondents therein, restraining transferring, alienating or otherwise dealing with or disposing of the same, pending disposal of the OA. 7

5. As the defendant Nos.3 to 6 therein were un-served, paper publication for service of notice was taken on them on 08.11.1999. As stated above, on

15.09.2000, late Davinder Kumar, who was defendant No.4 in OA executed gifted deed in favour of his wife in respect of the property in question. Subsequently, on 25.11.2001, Davinder Kumar died and his wife Smt.Susheela, was brought on record as respondent. The recovery certificate was issued by the DRT on

28.03.2002. Thereafter, Smt.Susheela, LR of the Davinder Kumar under registered sale deed dated

19.04.2002 sold the property in favour of M/s.Khoday India Limited, respondent No.7 herein. When demand notices were issued by the Recovery Officer of the DRT based on the Recovery Certificate, the seventh respondent appeared objections/obstructions to the proceedings in respect of ‘E’ schedule property on the ground that they were 8 the bonafide purchasers and that there was no impediment for them to purchase the ‘E’ schedule property.

6. The seventh respondent also filed separate petition on 21.06.2005 in DCP proceedings before the Recovery Officer seeking deletion of ‘E’ schedule property under sale proclamation dated

03.09.2001. The said petition also came to be dismissed by order dated 19.08.2005. By separate order dated 24.08.2005, obstruction petition was also rejected. Thereafter, once again, Sale Proclamation was ordered on 02.09.2005 and the objection filed by seventh respondent was again dismissed. Fresh Sale Proclamation was issued again on 07.08.2012. Again, the seventh respondent filed its objection under Rule 11(1) of II schedule, read with Section 25 and 29 of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, ‘RDBFY Act’) to set 9 aside the Proclamation. The objections of M/s.Khoday India Limited was again dismissed by an order dated

18.08.2014. Again, sale Proclamation was issued on

03.11.2014 and in the meanwhile, seventh respondent had filed appeal before the Debts Recovery Appellate Tribunal (for short, ‘DRAT’) against an order dated

18.08.2014, where its objection petition was rejected. As the DRAT directed statutory deposit, the 7th respondent filed writ petition before this Court challenging the order passed by the DRAT and said writ petition came to be dismissed on 09.06.2015. SLP filed also was dismissed by order dated

31.07.2015.

7. On

06.10.2015, appellant herein/respondent No.8 before the learned Single Judge, filed an impleading application before the Recovery Officer, DRT, Bengaluru implead themselves as party respondents claiming that they 10 are the mortgagees under respondent No.7. The said impleading application was allowed by the Recovery Officer by order dated 31.01.2017, with an observation that non-service of order of injunction dated 18.06.1999 on defendant No.4 i.e., Davinder Kumar, the order of injunction has become redundant and it cannot be enforced. Against the said order dated 31.01.2017, the petitioner filed appeal before the DRT-II on 17.03.2017. Subsequently, by filing a memo, the petitioner/Bank withdrew the appeal filed before the DRT With liberty to pursue its legal remedies as per law before the appropriate Court of law.

8. Thereafter, petitioner/Bank W.P.No.9639/2018 with a prayer to quash the order dated 31.01.2017 passed by the Recovery Officer in DRC.No.1709 OA.No.521/1999 impleading respondent No.8 as party respondent, with a prayer 11 to direct the Recovery Officer to proceed with the recovery proceedings DRC.No.1709, OA.No.521/1999 in respect of the property question. Learned Single Judge under impugned order, allowed the writ petition quashed the impugned order dated 31.01.2017 in DRC.No.1709 OA.No.521/1999 with a direction to proceed with the recovery proceedings. Learned Single Judge while allowing the writ petition observed that a pendente lite purchaser would be bound by any order/decree that would be passed against his vendor especially when respondent No.8 claims as mortgagee of schedule property from respondent No.7. Questioning the order of learned Single Judge as well as observations made therein, appellant/respondent No.8 before the learned Single Judge is in appeal.

9. Heard learned senior counsel Sri.V.Srinivasa Raghavan learned counsel 12 Sri.A.S.Vishwajith for the appellant, learned senior counsel Sri.G.Krishnamurthy for Sri.Bharath M.R., and Sri.Chandrakanth Patil K., learned counsel respondent No.1 learned counsel Sri. Gurumurthy M., for respondent No.8. Perused the entire writ appeal papers as well as written arguments and the case-laws on which learned senior counsels placed reliance.

10. Learned senior counsel Sri.V.Srinivasa Raghavan, would contend that the writ petition filed by the petitioner/SBI was not at all maintainable since the statutory appeal filed by SBI was withdrawn by filing a memo to pursue their remedies available law. Learned senior counsel invites attention of this Court to averments made in the writ petition at paragraph 29 and submits that the appeal filed before the DRT, challenging the impugned order

31.01.2017 DRC.No.1709 13 O.A.No.521/1999 was withdrawn solely on the ground that the DRT has no power to condone the delay in filing the appeal. Learned senior counsel would submit that though liberty is granted to avail any other remedy, a time barred claim under the Statute could not have been entertained under Article 226 of the Constitution of India. In that regard, learned senior counsel places reliance on the decision of the Hon’ble Apex Court of ASSISTANT COMMISSIONER (CT) LTU, KAKINADA AND OTHERS VS. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED1.

11. Further, to contend that Section 5 of the Limitation Act, 1963 (for short, ‘Limitation Act’) would not be applicable to appeals filed under Section 30 of the Recovery of Debts and Bankruptcy Act, 1993 (for 1 (2020) 19 SCC 681 14 short, ‘DRT Act’), learned senior counsel places reliance on the decision of the Hon’ble Apex Court in INTERNATIONAL ASSET RECONSTRUCTION COMPANY OF INDIA LIMITED VS. OFFICIAL LIQUIDATOR OF ALDRICH PHARMACEUTICALS LIMITED AND OTHERS2.

12. Learned, senior counsel Sri.V.Srinivasan Raghavan next contended that in terms of Rule 68B of the Second Schedule to Income Tax Rules, no sale of immovable property is permissible after the expiry of three years from the date of attachment. In that regard, learned senior counsel takes us through Rule 68B as well as the decision of the Hon’ble Apex Court i.e., C.N.PARAMASIVAM AND ANOTHER V/S. SUNRISE PLAZA THROUGH PARTNER AND OTHERS3. Further, learned senior counsel would contend that it ORDER (a) Writ appeal is allowed. (b) Impugned order dated 23.05.2023 in W.P.No.9639/2018 passed by the Learned Single Judge is set aside and the said writ petition stand dismissed with liberty to the petitioner/Bank to avail any other remedy available under law. SD/- (S. G. PANDIT) JUDGE SD/- (RAMACHANDRA D.HUDDAR) JUDGE NC. CT: BMS