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2016 (5) TMI 982 - BOMBAY HIGH COURT

2016 (5) TMI 982 - BOMBAY HIGH COURT - TMI - Debt Recovery order - sale of property was ordered to be cancelled and was set aside - Held that:- No question of limitation arises either. Article 127 of the Limitation Act is premised on the case falling under Order 21 Rr 89-91 of the Code of Civil Procedure, 1908. Those provisions are inapplicable to a case where a sale has been set aside on account of a default on the part of the purchaser in complying with the terms and conditions of the sale. Fu .....

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nd Conditions of sale made it the absolute and sole obligation of the Petitioner to obtain UPSIDC consent and to clear all dues. The sale was sanctioned in favour of the Petitioner on 16th October 2007. For the next five years, till 18th February 2011, the Petitioner failed to clear those dues. It can hardly be heard to complain now. The fact that there were several workmen of Daewoo was also known to all. Those workmen had intervened in the Appeals filed by unsuccessful bidders before the Presi .....

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t no point was any attempt made to run the plant. The existing facilities were totally gutted, down to the wiring and window frames being removed and the entire structure being stripped bare and rendered unusable. Significant too is the fact that the Petitioner sought change of user from industrial to residential, another factor that is not brought out in the Petition at all.

The Petitioner took the property under an order of a Court, without then questioning it. It took it subject to .....

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cannot escape the finding, established by this voluminous record, that the Petitioner has played fast and loose not only with the Recovery Officer, the DRT and the DRAT but also with this Court. The Petition is wanting in candour. Wholly incorrect statements were made include about the issuance of the necessary debentures and about the property being kept insured, as also of the so-called ‘investment’ made by the Petitioner in the unit. What emerges from this is a picture of the Petitioner tryin .....

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oo, that the days when this Court would, for whatever reason, take a lenient view are very firmly in the past. We have our eyes to the future. That includes the economic, financial and developmental future of the country. That concern is ill-served by litigants who clog up the courts and consume judicial time pursuing false cases.

There is no merit in the Petition. It deserves to be dismissed, and it is. It also deserves to be visited with costs, and it is. These costs quantified at .....

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Ms. Varsha Parulekar., Mr. Sham Walve, a/w Ms. Sushila Vichare, i/b M/s. KS Legal Consultant., Mr. Karan Bhosale, i/b Ms. Neha Bhosale JUDGMENT (Per G. S. Patel, J.): 1. By this Petition, filed under Articles 226 and 227 of the Constitution of India, the Petitioner seeks to challenge an order dated 8th January 2014 passed by the Debt Recovery Appellate Tribunal ( DRAT ) in Miscellaneous Appeal No. 58 of 2013. The present Petitioner was the Appellant before the DRAT. Although Ms. Sethna for the P .....

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sed by the Presiding Officer of the Debt Recovery Tribunal in a First Appeal filed by the Petitioner. 2. We have heard Ms. Sethna for the Petitioner and Mr. Cooper for the 1st Respondent, the Asset Reconstruction Company (India) Limited ( ARCIL ), at considerable length. The record before us includes the Petition in two volumes, running to about 500 pages, a substantial Affidavit in Reply, a copy of the written submissions filed before the Debt Recovery Appellate Tribunal, a four volume compilat .....

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set out briefly the facts that led to the filing of this Petition. (a) On 26th April 2002, ICICI Bank Ltd. filed Original Application No. 162 of 2002 before the Mumbai Debt Recovery Tribunal ( DRT ). It sought recovery of ₹ 511,02,86,697/-, said to be due as on 31st March 2002, jointly and severally from Daewoo Motors Private Limited ( Daewoo ), by then in liquidation, and Daewoo Corporation, a holding company (Respondents Nos. 2 and 3 before us). ICICI Bank also sought further interest at .....

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ts order dated 8th August 2002, the DRAT directed the DRT Receiver to sell the suit properties by public auction or private treaty. (c) The fixed assets of Daewoo included most importantly a large plot of leasehold land. This was Plot No. A-1, Surajpur Industrial Area, Greater Noida, Gautam Buddha Nagar, Tahasil-Dadri, District Gaziabad, Uttar Pradesh. The plot measures 204 acres. There are several structures standing on this land along with plant and machinery. This was once a motor car manufac .....

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Certificate was issued in favour of ICICI Bank. (g) By an Assignment Agreement dated 29th March 2005, ICICI Bank assigned, transferred and sold all loans of Daewoo together with the Recovery Certificate and all underlying securities, including the suit properties, to ARCIL. The Recovery Certificate was then amended to bring ARCIL on record. ARCIL then initiated Recovery Proceeding No. 440 of 2004 before the Recovery Officer, Mumbai DRT ( Recovery Officer ). (h) In the meantime, IDBI Bank, till .....

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ficer seeking that the DRT Receiver be permitted to invite bids in public auction for sale of the assets but on various payment options such as deferred payment, payment in cash, payment in kind and so on. The DRT Receiver attempted to sell the properties in execution of the Recovery Certificate in various public auctions. At a sale conducted on 23rd August 2006, the DRT Receiver certain offers. These were rejected as they were not in accordance with the terms and conditions of the sale fixed by .....

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timation along with a copy of the terms and conditions of sales and other particulars to the intending officers inviting bids. These were to be received on or before 7th December 2006. The DRT Receiver received five offers, including one from one Crosslinks Finlease Private Limited ( Crosslinks ), the 11th Respondent before us. At that time, Crosslinks was the second highest bidder at ₹ 459 crores. The highest bidder was one Adzon Media Pvt. Ltd. (j) The DRT Receiver asked the bidders to i .....

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died the revised officers, ARCIL wrote to the DRT Receiver confirming its acceptance of the offer made by the Crosslinks, then the highest offerer. ARCIL Compilation, Vol. I, pp. 21-27 On 2nd February 2007, these revised offers with their supporting documents were placed by the Recovery Officer by the DRT Receiver, who made a report on them. (l) On 12th February 2007, after notice to parties, the Recovery Officer held extensive hearings. By an order dated 12th February 2007, the Recovery Officer .....

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men s union to the offer made by the Petitioner as a nominee of the Crosslinks. ARCIL Compilation, Vol. I, pp. 28-29. (n) It seems that the Recovery Officer s order of 12th February 2007 was carried in appeal by various parties including Canara Bank. In one of these appeals, the Presiding Officer of the DRT passed an order of status quo of the sale of the suit properties (i.e., the fixed assets). This order of status quo was finally brought to an end by an order dated 5th October 2007 passed by .....

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₹ 765 crores for Lot No. 1. It said it would create a Special Purpose Vehicle or SPV to take over these assets. The SPV would be capitalized by equity and debt in the ratio of 35:65. There would be an initial payment of 35% of the sale consideration, i.e., ₹ 267.75 crores. The balance, ₹ 497.25 crores along with interest at 10% per annum, was to be paid on a deferred date and this was the debt component. That date of payment was deferred to the due date of Secured Non Convertib .....

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ssary documents to complete the sale transaction in accordance with the order of 16th October 2007 passed by the Recovery Officer. ARCIL Compilation, Vol. I, p. 53. It was on these basis that ARCIL and SASF issued their no objection letters dated 16th October 2007 and 17th October 2007 respectively to the DRT Receiver. ARCIL Compilation, Vol. I, pp. 54-55. (r) On 17th October 2007, the Recovery Officer passed certain further directions regarding delivery of possession of the fixed assets to the .....

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ore the DRAT. By a common order 19th October 2007, the DRAT directed the DRT to dispose of the unsuccessful bidder s application on 22nd October 2007. On that day, the DRT passed an order of interim stay of the recovery proceedings pending the final decision in all pending appeals. Again aggrieved by this order, ARCIL and Crosslinks filed appeals to the DRAT. By its order dated 25th October 2007, the DRAT vacated the interim stay of the recovery proceedings. (s) On 25th October 2007, the DRT Rec .....

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3 of 2008 (later numbered Exhibit 69 ) before the Recovery Officer. It sought directions against the Uttar Pradesh State Industrial Development Corporation ( UPSIDC ), the lessor of the land at the Surajpur Industrial Estate, to forthwith withdraw its claim in relation to the transfer of the lease and demanding that the claim be lodged instead with the Official Liquidator attached to Delhi High Court. ARCIL was not joined as a party to this application. UPSIDC filed an Affidavit and Written Subm .....

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7AA. (w) On 24th September 2009, the Recovery Officer directed the Petitioner to insure the property in question, failing which the sale in its favour would be set aside. (x) On 13th November 2009, Consent Terms (later Exhibit 141 ) were entered into between ARCIL and the Petitioner before the Recovery Officer. ARCIL Compilation, Vol. I, pp. 68-309; Petition, Ex. M , pp. 159-408. Under these Consent Terms, the Petitioner was required to comply with the terms and conditions of the sale in a time .....

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nominees on the Petitioner s board. Clauses 2(xvii), ARCIL Compilation, Vol. I, p. 90; Petition, p. 183. Clauses 1 to 3, read with Clauses 4(e) and 4(f ) of the Consent Terms meant, she says, that the debenture series were both secured. Clause 4(h) cast an obligation on the Petitioner to insure the property in question. (y) Two days later, on 15th December 2009, the Recovery Officer gave the Petitioner liberty to clear the entire dues of UPSIDC in order to avoid further delay. The Petitioner wi .....

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all pending Miscellaneous Applications filed by both ARCIL and the Petitioner came to be disposed of. (bb) On 28th April 2010, a status Affidavit came to be filed before the Recovery Officer pointing out default on the part of the Petitioner. On 3rd May 2010, ARCIL filed another Miscellaneous Application (later, Exhibit 146 ) before the Recovery Officer once again seeking to set aside the sale in favour of the Petitioner on the ground that Petitioner was yet in default of their obligations. The .....

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have been in default. Undoubtedly it put forward some reasons for this noncompliance, but the fact remains that repeated extensions were sought without demonstrating compliance. The requirements in respect of the requisite debenture trust deeds and the pledges of the necessary shares were never fully complied with either. From the record it appears that the Petitioner s advocates kept sending fresh Miscellaneous Applications with proposed documents of pledge and trust deeds but these Miscellane .....

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ension of four weeks to comply with the terms and conditions of sale, viz., the creation of a mortgage in favour of ARCIL and SASF and for the pledge of the shares in question. ARCIL Compilation, Vol. II, pp. 69-71. On 24th January 2011, the Petitioner sent to ARCIL the purported debentures in ostensible part compliance with the terms and conditions of the sale. ARCIL Compilation, Vol. II, pp. 72-77. By then their redemption and conversion dates had passed. On 25th January 2011, ARCIL filed an A .....

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iances required of the Petitioner. (ee) On 14th February 2011, the Petitioner wrote to ARCIL saying that it had complied with the terms and conditions of the sale and apparently cleared all the dues of UPSIDC. ARCIL Compilation, Vol. II, p. 103. ARCIL claims that it did not receive this letter till the time of a hearing before the Recovery Officer several days later on 18th February 2011. (ff) On that date, i.e., 18th February 2011, ARCIL applied a second time to set aside the sale in favour of .....

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t 184 , that it had filed for withdrawal of that bid application. In other words, RNA now tried to withdraw its withdrawal. In Ms. Sethna s submission this demonstrates that the entire application by ARCIL for cancellation of the sale to the Petitioner is vitiated by mala fides, and all that it was trying to do was to renegotiate an already concluded transaction with a rival bidder. (gg) On 18th February 2011, the Recovery Officer passed an order granting part of ARCIL s application restraining .....

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ed Miscellaneous Appeal (L) No.202 of 2011 before the DRT challenging the Recovery Officer s order dated 18th February 2011. The DRT stayed the Recovery Officer s order in part. (jj) Meanwhile, on that very day, before the Recovery Officer the Petitioner sought an adjournment to file its reply to ARCIL s application for setting aside the sale. ARCIL s application was at that time already supported by UPSIDC. The Recovery Officer, a few days later, issued directions for filing Affidavits in Reply .....

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pite that Petition having been filed, the Petitioner proceeded to file a compilation of documents before the Recovery Officer, who heard the Petitioner s counsel at some length. At this time written submissions were also filed by the Workmen s Union. (ll) On 15th April 2011, the arguments on behalf of the Petitioner were concluded before the Recovery Officer. The matter was adjourned for the arguments of UPSIDC and for ARCIL s Rejoinder. (mm)On 26th April 2011, the DRAT allowed the Transfer Peti .....

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very Officer s injunction order dated 18th February 2011, i.e., one that had been passed almost a year earlier. It also filed an application for expediting the hearing. This was rejected. An appeal from the order of rejection was also dismissed. A further appeal to the DRT also failed. The Petitioner filed a Writ Petition before this Court but, on 19th March 2012 withdrew that Writ Petition. (oo) On 22nd November 2012, the Recovery Officer set aside the sale in respect of the suit property, viz. .....

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l to the Presiding Officer of the DRT. The Presiding Officer continued the stay. Before the DRT, the Petitioner said that the fixed assets had been duly insured. This statement turned out to be incorrect; those assets were never kept insured. (qq) On 30th January 2013, the Presiding Officer of the DRT dismissed the Appeal and upheld the Recovery Officer s order of 22nd November 2012. ARCIL Compilation, Vol. III, pp. 34-64. He also vacated the stay granted by the Recovery Officer. ARCIL Compilati .....

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avit in Reply, pp. 558-559 ARCIL contends that inventory was refused and obstructed by the Petitioner. Affidavit in Reply, pp. 563-572. There are reports of the DRT Receiver and the Commissioner (the Recovery Inspector) relied on by ARCIL in this regard. There is a two-volume compilation with colour photographs. It shows extensive damage to the unit buildings and structures. They appear not only to have been neglected but to have been stripped down to their shells. (ss) On 8th January 2014, the .....

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the Recovery Officer s order of 14th March 2014. By its letter dated 4th April 2014 to the Petitioner, ARCIL fixed 11th April 2014 as the date for taking over possession. On 4th April 2014, the Recovery Officer passed an order appointing a new valuer of the fixed assets. Petition, Ex. X , p. 508. On 9th April 2014, ARCIL wrote to the Petitioner postponing the possession date and, on 16th April 2014, informed the Petitioner of the Recovery Officer s order appointing a new valuer. On 25th April 2 .....

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nating or disposing of the fixed assets. SJ Vazidar (as he then was) and AK Menon JJ The Petitioner was also directed to insure the fixed assets and ARCIL was allowed full access to these fixed assets for the purposes of inspection and inventory. ARCIL was also permitted to give inspection to prospective bidders after 72 hours prior notice to the parties. This Court appointed a Court Commissioner to attend the site with ARCIL and to file detailed reports. The Court also allowed the fixed assets .....

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, the Recovery Officer apparently ordered a forfeiture of the amount of ₹ 276.75 crores paid by the Petitioner. This order is under challenge in a First Appeal before the Presiding Officer of the DRT. (xx) On 19th March 2015, pursuant to the leave granted by this Court, the Recovery Officer initiated a re-auction sale process in respect of the fixed assets. Notices for sale proclamation were served on the Petitioner. On 23rd September 2015, the public notice or proclamation of the sale alo .....

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uly 2014. However, on 22nd and 23rd October 2015, it seems that the Petitioner did not permit further inspection of these fixed assets. This is noted in Mr. Talekar s second report. On 30th October 2015, the re-auction sale of the fixed assets scheduled for 30th October 2015 was cancelled. A report was filed by ARCIL on 30th October 2015 about the site visit for inspection. 4. We have noted these facts in such detail not because we believe we can go into them in our writ jurisdiction as we might .....

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ruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( SARFAESI Act ) and being an assignee of the original lender, ICICI Bank, elected to conduct a purely private treaty sale. According to Ms. Sethna, such a private treaty sale lies specifically within the purview of Rule 8 of the Security Interest Enforcement Rules framed under the SARFAESI Act. Neither the Act nor the Rules require permission from the DRT for such a sale and ARCIL did not need to go to the DRT for a sale .....

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her words, it operates to oust the jurisdiction of the DRT. Simply put, her submission is that Section 34, the provision of the SARFAESI Act that ousts the jurisdiction of ordinary Civil Courts, is itself ousted in the case of a private conditional sale, and that jurisdiction re-vests with the Civil Court. The SARFAESI Act has absolutely no application to such a sale. 6. Ms. Sethna relies on a number of judgements in support of her submission that once it is shown that the DRT/DRAT lacked inhere .....

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Desai, (2015) 6 SCC 412 Though very well-settled, the manner in which Ms. Sethna places the submission is overbroad and of no assistance to her cause. This indiscriminate citing of precedent, without regard to facts or even the statutes under which those cases were decided, is more distracting than helpful. After all, for the principle to apply, Ms. Sethna must first establish that lack of jurisdiction of which she speaks. This cannot be assumed. There is simply no basis for that submission. Wit .....

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for any order cancelling that sale. The DRT had no power or authority in law to order any such cancellation. Once possession was given to the Petitioner, the sale was absolute and only a Civil Court would have jurisdiction. 8. She further submits that ARCIL having conceded that a confirmed sale took place in favour of the Petitioner, it could not contend to the contrary before the DRT or the DRAT. It had no right to seek an order setting aside that sale without proof of fraud or material irregu .....

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ma Rao v Gutala Kahna Rao, (2000) 3 SCC 87; Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust, AIR 1975 SC 2065. 9. Ms. Sethna submits, in the alternative and without prejudice, that once Consent Terms were filed with the DRT, in effect these operated as an application by ARCIL of a withdrawal of its application to set aside the sale. No liberty was reserved to ARCIL to bring a subsequent application to set aside the sale. ARCIL, therefore, relinquished any right that it may have had to h .....

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binding like any other and cannot simply be ignored. Parayya Allayya Hittalamani v Shri Parayya Gurulingayya Poojari, (2007) 14 SCC 318; Motilal Padampat Sugar Mills Co. Limited v State of Uttar Pradesh & Others, AIR 1979 SC 621; Shankar Sitaram Sontakke & Anr. v Balkrishna Sitaram Sontakke & Ors., AIR 1954 SC 352 In this context, she also says that acting as an executing Court, the DRT could not go behind the Consent Terms which operated as a decree. State of Punjab v Krishan Dayal .....

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We were somewhat dismayed by Ms. Sethna s attempts to take us through the Consent Terms in very minute detail, for this line of argument seemed to overlook something fundamental: that in our writ jurisdiction we could not possibly function as court of appeal and, in this case, a court of third appeal at that. 10. She also contended that the DRT had no jurisdiction to act as an executing Court at all. That jurisdiction, if ever it existed, ceased once the sale in favour of the Petitioner was con .....

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he manner that was purported to be done. Under the deferred payment terms, the second tranche was not due till October 2010. Once the debenture instruments were issued, ARCIL s remedies laying the exercise of their rights under those debenture instruments, as further circumscribed by the Consent Terms. There was no question of going behind either the terms of the debenture documents or the Consent Terms. It is Ms. Sethna s submission that either under the SARFAESI Act or under the Recovery of De .....

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tters came to light, UPSIDC insisted on payment of its entire dues upfront. This left the Petitioner with little choice but to initiate a litigation with UPSIDC, and that in turn led to a considerable delay. The Petitioner cannot, Ms. Sethna submits, be foisted with the consequences of this inevitable delay, one that was entirely due to suppression of relevant facts at the time of the sale by ARCIL itself. She says that ARCIL made repeated applications to set aside the sale between 2009 and 2011 .....

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the Limitation Act, 1963 operates as a bar any application for setting aside the auction sale. Possession was delivered to the Petitioner in October 2007 after the sale in its favour was confirmed by the DRT against payment of agreed upfront cash consideration. The next payment instalment, i.e., under the deferred payment terms, was due only in October 2010. Any action to set aside the sale was required to be brought within 60 days of the date of possession. Ms. Sethna relies on the decision of .....

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l obligations, and that it has been mala fide transacting on the property with a rival bidder. We do not believe that these submissions are relevant for the purposes of a determination of this matter. This is, after all, as we repeatedly pointed out to Ms. Sethna, not a substantive appeal, but a Writ Petition invoking the discretionary remedy of this Court under Articles 226 and 227 of the Constitution of India. Within that framework, there are well established restrictions on what this Court ca .....

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t, Mr. Cooper relies on the decision of Supreme Court in Gurdev Kaur v Kaki, AIR 2006 SC 1975 in which the Supreme Court said that findings of facts, however wrong or even inexcusable, cannot be interfered with in a second appeal. The rationale behind this principle, one that finds statutory voice in Section 100 of the Code of Civil Procedure, 1908, is that there should be a judicial authority possessed of jurisdiction to maintain and, where necessary, to establish throughout its jurisdiction un .....

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contained in the order 16th October 2007, passed by the Recovery Officer as also in the Consent Terms of 13th November 2009. The mere handing over of possession to the Petitioner did not result in a waiver of ARCIL s right to seek compliance of the terms and conditions including payment of balance sale consideration. Possession was handed over as part of the unconditional undertaking issued by the Petitioner in its letter of 16th October 2007 to honour the terms and conditions of the sale. This .....

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to 2011 but defaulted in compliance with its terms and conditions of sale including the non-payment of the balance sale consideration; nonissuance of debentures; non-procurement of the no objection certificates from UPSIDC and the non-clearance of its claim; nonexchange of debenture certificates with allotment letters within stipulated time; failing to insure the fixed assets; failing to register the debenture trust deeds and more. The last extension of time sought by the Petitioner expired on 1 .....

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tioner was in breach of the Consent Terms in many ways, not least of which was its failure to keep the property insured, and its utterly false statement that it had done so. The NCDs were redeeemable on 25th October 2010, three years from the possession date of 25th October 2007. Even the Consent Terms confirm this. It was only after that date that ARCIL demanded payment. But the revised debentures sent on by the Petitioner, all still unsecured, purported to unilaterally extend the dates of rede .....

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Court never had the fundamental jurisdiction in the first place. The Consent Terms are critical to the construct of Ms. Sethna s case; and those Consent Terms were only possible in a Court and not outside it. 18. As to the issue of the sale being a private contract or private treaty between ARCIL and the Petitioner without the intervention of the DRT and being contrary to provisions of the DRT or SARFEASI Act and the applicable provisions of Income Tax Act, 1961 Mr. Cooper submits that this is t .....

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y all three tribunals below who held that it was the Recovery Officer who had authority to sell the property and to set aside that sale. The fact that the required terms and conditions were never fulfilled is established, Mr. Cooper submits, by the Consent Terms themselves. There can also be no dispute about this noncompliance because the Petitioner itself made repeated applications seeking extensions of time for this very purpose. In fact, ARCIL s first application was not to set aside the sale .....

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ed to the bone. 19. Mr. Cooper says that the entire edifice of the Petitioner s case is based on a fundamentally flawed supposition that the sale in favour of the Petitioner was an entirely private sale without the intervention of the Recovery Officer. This is demonstrably incorrect, Mr. Cooper says. 20. We agree. For it is a matter of record that by his order of 8th August 2002, the Chairperson of the DRAT granted the power to the Receiver to sell the properties in question by way of either pub .....

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The Petitioner is admittedly a nominee of Crosslinks. Mr. Cooper also points out that the offers were invited from all the bidders who had participated in the public auction. The Receiver received different offers in response to the sale under these special terms and conditions. The highest of these was one Adzon Media Private Limited at ₹ 600 Crores. Crosslinks s bid then was ₹ 459 Crores. It was the second highest. In a later meeting, the parties were asked to revise and enhance t .....

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declared and confirmed Crosslinks as the highest bidder by his order dated 12th February 2007. This sale was subsequently sanctioned by the Recovery Officer in favour of the Petitioner as a nominee of Crosslinks by an order dated 16th October 2007. Thus, it is clear that the sale is not, as Ms. Sethna would have it, an entirely private sale or a private arrangement between ARCIL and the Petitioner. It is most emphatically a Courtdirected sale, one in which other bidders also participated. The P .....

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public auction and a private sale. 21. Once we accept Mr. Cooper s view, then, in fact, the remaining arguments canvassed by Ms. Sethna must necessarily fade into irrelevance. It would not ordinarily have been necessary to go any further than this, but since the matter has been strenuously canvassed before us, we will deal with the remaining contentions. 22. We find some of Ms. Sethna s submissions to be contrary to the record. We are, for instance, unable to comprehend how it could possibly be .....

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r of the Petitioner. 23. It appears to us beyond doubt that the sale in favour of the Petitioner was not, as Ms. Sethna would have us hold, a private sale entirely outside court, but was very much a Court-ordered sale with its terms and conditions having been approved by the Recovery Officer. We cannot understand how such a jurisdictional issue can be raised now by this Petitioner. After all, it participated in the auction without protest. It raised its offer when asked to do so. The sale and it .....

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ave set aside the sale; and, further, that once the Petitioner had purported to issue debentures against the balance consideration, the Recovery Officer s jurisdiction ended. As we have noted, this was a Courtsanctioned sale on special terms including inter alia as to deferred payment. The sale was in pursuance of a Recovery Certificate obtained in proceedings properly brought by ICICI Bank. We do not see how officers and forums can be said to come and go like this or to have jurisdiction at one .....

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r have gone into the questions of liability and recovery. That law is now wellsettled. Allahabad Bank v Canara Bank, AIR 2000 SC 1535 Further, Rule 9 of the Second Schedule to the Income Tax Act, 1961, which is applicable to the sale in view of Section 29 of the DRT Act, expressly says that all questions that arise between the Recovery Officer and the defaulter or its representatives relating to the execution, discharge or satisfaction of a certification or relating to a confirmation or setting .....

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d all these submissions on jurisdiction to be self-defeating and contradicted by the Petitioner s own conduct. No such objection was raised when Crosslinks submitted its bid or revised it, and the Petitioner is only Crosslinks s nominee. No such objection was taken at the time of possession. Indeed, the Petitioner demanded possession, and that could only be in pursuance of the sale in its favour, one that was under terms and conditions approved by the Recovery Officer and accepted by the Petitio .....

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jurisdiction that the Petitioner now questions as never having existed is the one under which it purported to take possession of the property and then to strip it bare. The genesis of the Petitioner s involvement is, to begin with, a proceeding for recovery before the DRT. The entire structure of this argument is deeply flawed and, in our considered view, fundamentally dishonest. 26. It is also an argument without basis in law. Mr. Cooper is correct in saying that a court s right to set aside a .....

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ale is also a submission entirely devoid of merit. Securitization companies are included in the amended definition of financial institutions under Section 2(h)(ia) of the DRT Act. Therefore, it can have recourse to the RDDB Act in addition. Every bank or financial institution (as defined) is free to move under the RDDB/DRT Act as also under the NPA/SARFAESI Act. Both are complementary. Transcore v Union of India, (2008) 1 SCC 125. 28. In our view, no question of limitation arises either. Article .....

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about non-disclosure of UPSDIC dues and the consequences of a workers agitation are, to our mind, nothing but a diversion. The sale terms are clear. It was on an as is where is and as is what is basis, coupled with a no complaint and no recourse condition. Clause 25 of the approved Terms and Conditions of sale made it the absolute and sole obligation of the Petitioner to obtain UPSIDC consent and to clear all dues. The sale was sanctioned in favour of the Petitioner on 16th October 2007. For the .....

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e the unit or a genuine offer to rehabilitate the unit and provide employment to the workmen of Daewoo. It appears to us to have been little more than an attempt to get possession and control of a huge tract of land and turn it to real estate development. The record indicates that at no point was any attempt made to run the plant. The existing facilities were totally gutted, down to the wiring and window frames being removed and the entire structure being stripped bare and rendered unusable. Sig .....

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that the order of forfeiture of what Ms. Sethna describes as upfront poundage should, for those reasons, be quashed. In Court, we repeatedly asked her if her clients would bring in the balance even now due. Her response was that her instructions were to say no; but to also say that if the upfront payment was returned (i.e., not forfeited), the Petitioner would have no further quarrel. We find this wholly unacceptable. The Petitioner took the property under an order of a Court, without then quest .....

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its and has placed on record two reports. The first report is dated 29th September 2014 and the second report is dated 29th October 2015. In paragraph 10 of the first report, Mr. Talekar noted the condition in which he found the subject property: no power supply to many units, uncleaned and not maintained, electric cable stripped of all but their shielding, empty electric boards, a damaged chimney and so on. So much for the Petitioner s contention of having invested in the plant. Mr. Talekar s f .....

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tober 2015 to 22nd October 2015. We find his work meticulous and sufficient for our purposes. His costs are to be quantified, and we quantify these at ₹ 1,10,000, computed at ₹ 10,000 per day for 11 days. These costs will be paid to Mr. Talekar by the Petitioner within two weeks from today. 33. In the facts and circumstances of the case, we believe we would be utterly remiss in our duty if we failed to impose costs in a matter such as this. We cannot escape the finding, established b .....

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s and complying with the terms and conditions of the sale. It is apparent that the attempt always was to offer a high price to gain the top slot as a successful bidder, and then to persistently delay completion of the sale by payment of the balance consideration. To this end, there were constant applications for time extensions, appeals, writ petitions and more, all seeking to delay matters. Wholly incorrect statements were made include about the issuance of the necessary debentures and about th .....

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