w w w . L a w y e r S e r v i c e s . i n

Super Iron Foundry Private Limited V/S The Axis Bank Limited and Others.

Company & Directors' Information:- AXIS BANK LIMITED [Active] CIN = L65110GJ1993PLC020769

Company & Directors' Information:- SUPER IRON FOUNDRY PVT LTD [Active] CIN = U27310WB1988PTC044810

Company & Directors' Information:- I AXIS LIMITED [Active] CIN = U72200TG2003PLC040977

Company & Directors' Information:- J G FOUNDRY LIMITED [Active] CIN = U27100BR1991PLC004417

Company & Directors' Information:- AXIS CORPORATION PRIVATE LIMITED [Active] CIN = U35990MH2010PTC208288

Company & Directors' Information:- J D IRON PRIVATE LIMITED [Active] CIN = U51420DL1996PTC079084

Company & Directors' Information:- B L FOUNDRY PVT LTD [Active] CIN = U74999HR1991PTC031176

Company & Directors' Information:- K & K FOUNDRY PRIVATE LIMITED [Active] CIN = U27320PN2007PTC129726

Company & Directors' Information:- S P IRON PRIVATE LIMITED [Active] CIN = U27106DL2005PTC136441

Company & Directors' Information:- R P FOUNDRY PRIVATE LIMITED [Active] CIN = U27104PB1993PTC012925

Company & Directors' Information:- M K IRON PRIVATE LIMITED [Active] CIN = U27109CH1997PTC019501

Company & Directors' Information:- S B FOUNDRY LTD [Strike Off] CIN = U27103WB1969PLC027623

Company & Directors' Information:- B R IRON FOUNDRY PVT LTD [Active] CIN = U27310WB1991PTC052866

Company & Directors' Information:- B & C FOUNDRY LIMITED [Strike Off] CIN = U29253TN2009PLC070743

Company & Directors' Information:- H P IRON PRIVATE LIMITED [Active] CIN = U27100DL2009PTC191318

Company & Directors' Information:- SUPER CORPORATION LIMITED [Active] CIN = U19112UP2013PLC061542

Company & Directors' Information:- AXIS LTD [Amalgamated] CIN = U51109WB1981PLC034186

Company & Directors' Information:- B & G FOUNDRY PRIVATE LIMITED [Strike Off] CIN = U27104TN2004PTC054162

Company & Directors' Information:- M. L. IRON PRIVATE LIMITED [Active] CIN = U27101DL2011PTC220421

Company & Directors' Information:- P K IRON PVT LTD [Strike Off] CIN = U34300WB1981PTC034415

Company & Directors' Information:- S R FOUNDRY PRIVATE LIMITED [Strike Off] CIN = U02710KA1985PTC006627

Company & Directors' Information:- V M IRON PRIVATE LIMITED [Strike Off] CIN = U51909PN2012PTC142963

    Appeal No. 04 of 2019 (Arising out of RC Case No. 01 of 2016)

    Decided On, 03 January 2020

    At, Debts Recovery Tribunal Kolkata


    For Petitioner: Aman Baid and Sourav Sengupta And For Respondents: S.K. Sinha

Judgment Text

1. This appeal under Section 30 of the RDB Act, 1993 has been filed on 14th June, 2019 by the appellant inter alia challenging the sale notice dated 8th March, 2019 issued by the Learned Recovery Officer for sale of immovable property in RC case No. R.C. 01 of 2016 (Axis Bank Limited Durgapur Branch -vs- M/s. Golden Dairy & Livestock Development Cooperative Society Limited) and has prayed for quashing of the same.

2. The case of the appellant, in short, is that the sale notice dated 8th March, 2019 was issued in connection with RC Case No. 01 of 2016 by the Learned Recovery Officer of this Tribunal inviting quotations from interested purchasers to participate in an e-auction for sale of properties as described in the sale notice (annexure-A). As per sale notice the bidders who wanted to participate would be required to submit the following documents, viz.

a) Self-attested copy of PAN card;

b) Self-attested valid Residential Proof;

c) Self-attested valid e-mail ID and mobile Number;

d) Demand Draft/Pay Order of earnest money along with offer letter.

3. The Appellant being interested submitted an application on 12th April, 2019 for purchase of the immovable property mentioned in Serial Nos. A and B of the sale notice and deposited the earnest money i.e. 10% of the reserve price and also submitted all other documents as required. The application was duly received by the office of Recovery Officer. The auction was fixed on 22nd April, 2019. The Appellant was surprised that their bid was cancelled for want of sufficient documents viz. copies of Board Resolution and Company Incorporation Certificate.

4. The grievance of the appellant is that in the sale notice, only four items were called for which they deposited. There was no mention of requirement of the Board Resolution and Company Incorporation Certificate and, therefore, they did not submit it. Hence, on this ground their bid could not have been cancelled. They have, therefore, prayed for setting aside of the sale notice dated 8th March, 2019 and the e-auction held in terms of the sale notice.

5. No affidavit-in-opposition has been filed by the respondents.

6. I have heard the learned Counsel for the parties and perused the documents on record.

7. Mr. S.K. Sinha, Learned Counsel for the Certificate Holder Bank/Respondent has raised the point of limitation on the ground that the order was passed by the learned Recovery Officer on 2nd April, 2019 cancelling the bid of the appellant and the present appeal has been filed on 14th June, 2019 which is beyond 30 days and as such this appeal is barred by limitation.

8. Learned Counsel for the appellant, on the other hand, submits that the certified copy of the order was obtained by the Appellant on 12th June, 2019 and, therefore, the appeal having been filed on 14th June, 2019, is well within the period of limitation.

9. It may be mentioned that Mr. Nimish Mishra, Learned Counsel appearing on behalf of the auction purchaser on 10th July, 2019 prayed for adding his client as a party to the proceedings. But subsequently no step was taken by him nor was he present on the date of hearing.

10. The point of limitation as raised by the learned Counsel for the Respondent Bank may be dealt with at the first instance.

11. The main reliefs prayed for are for quashing of the sale notice dated 8th March 2019 and e-auction held on its basis. This notice was all along within the knowledge of the appellant. The contention that the certified copy was received on 12th June, 2019 has no nexus with this notice. The certified copy is with regard to the order of the Learned Recovery Officer dated 22nd April, 2019. But no relief has been claimed against this order.

12. However, interim relief has been sought for stay of the order of the Learned Recovery Officer dated 22nd April, 2019. It is settled position of law that interim relief is not the main relief. Even if the interim relief was granted, that will not serve the purpose of the appellant because the bar of limitation would still stare at his face because the sale notice is dated 8th March, 2019 which was all along within his knowledge and he also participated in the sale pursuant to this sale notice. Having participated in the sale and after having unsuccessful, he cannot now challenge the sale itself or the notice.

13. At best he could have prayed for setting aside the order of the Learned Recovery Officer dated 22nd April, 2019. In that event also it appears that the plea of receipt of certified copy on 12th June 2019 will not come to his rescue because it appears from the certified copy of the order dated 22nd April, 2019 of the Recovery Officer that on the date of the order itself, all the bidders were furnished with a copy of the order and in token of receipt of the same they have signed on the body of the order. The Appellant being bidder Nos. 1 and 2 also received a copy. Thus, the copy of order dated 22nd April, 2019 was received by them on that date itself. Strangely, they applied for certified copy on 11th June, 2019 i.e. more than one and a half month after and the copy was delivered on the very next date i.e. on 12th June, 2019. That apart every order of the Tribunal is uploaded in the e.drt portal on the same date or at least on the next date. Anybody can download it. Therefore, the copy of order was with the appellant long back on 22nd April, 2016, still they waited and filed the appeal only on 14th June 2019 after the sale certificate was issued on 10th June 2019.

14. Section 30 of the RDB Act clearly postulates that any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. The copy of the order was issued to the appellant on the date of the order itself i.e. 22nd April, 2019 as is apparent from the signature of bidders including the bidders No. 1 and 2 i.e. the present appellant, on the body of the order as stated earlier. This is also confirmed by the learned Counsel for the Certificate Holder Bank in his written note filed on 17th December, 2019. If a person applies for certified copy one and half month after and then come before Tribunal by filing an appeal and say that he received the certified copy late, that cannot be a ground to save limitation. In this case it is apparent that the Appellant sat tight over the matter and applied for certificate copy

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after a long gap and now he is taking the plea of late receipt of certificated copy. Moreover, the language used in Section 30 is 'copy of the order' not 'certified copy of the order'. Furthermore, the relief is claimed against the sale notice the copy of which was available to the applicant all along and for which no certified copy is required. 15. In view of the above, I find that the appeal is hopelessly barred by limitation. The appeal, being Appeal No. 04 of 2019, is accordingly rejected. No costs. Copy of the Order be uploaded in the Tribunal's Website. File be consigned to Record room. Order pronounced by me in the open Tribunal on this the 3rd day of January, 2020.