Kewal Krishan Mittal v. Debt Recovery Tribunal-II, Chandigarh & Ors.

CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ashok Goel, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed with a prayer that order of proclamation of sale dated 1.9.2008 (Annexure P4) whereby property equitably mortgaged by respondent No.3 was put to sale be quashed along with Annexure P8. Petitioner, who claim that he was successful in the auction and had deposited the auction amount either should be refunded the amount or put in possession of the property at once as respondents had not stated in the notice in compliance with Rule 53 of the Second Schedule to the Income Tax Act, 1961, as applicable to Banks and Financial Institutions Act, 1993, that the property is and was subject matter of civil suit. Counsel for the petitioner submits that prior to purchase of Civil Writ Petition No. 15963 of 2009 2 property by the petitioner, one Murlidhar had purchased the property.

Due to pendency of the civil suit he filed an application, that refund of auction amount be made in his favour and the Recovery Officer had passed an order that after deducting 10% amount of Rs.6,12,500/- from the Fixed Deposit Receipt, amount be refunded to Murlidhar, previous auction purchaser. Counsel further submits that this order had been assailed by Murlidhar before the Presiding Officer of the Debt Recovery Tribunal, Chandigarh. Attention of this Court has been drawn to Annexure P10 objection petition filed by respondent No.4. Counsel further submits that petitioner had also filed an application (Annexure P12) before the Debt Recovery Tribunal, Chandigarh with a prayer that as a successful auction purchaser, he be put in immediate possession of the property or amount be refunded. That application has been adjourned sine die as in the appeal filed by Murlidhar, previous auction purchaser, proceedings have been ordered to be stayed.

In para 23 of the present writ petition, it has been specifically averred that right of appeal vest in the petitioner but same is not being exercised as appeal will not be efficacious remedy. It is incumbent upon the petitioner to first approach the Appellate Court and pray for early disposal of the appeal. In case, the Appellate Authority fail to accede to the request of the petitioner, he may approach this Court for direction that his appeal be ordered to be decided at the earliest. This Court is of the view that the appeal is an efficacious and appropriate remedy available to the petitioner. Since the right of appeal vest in the petitioner, this Court will refrain to adjudicate arguments raised in the present petition. Civil Writ Petition No. 15963 of 2009 3 With the observations made above, the present petition is disposed off. October 20, 2009 “DK” (Kanwaljit Singh Ahluwalia) Judge