TMI Blog2016 (12) TMI 1561X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate are respectively within the exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the Company Court can go into the said questions relating to the liability and the recovery except as provided in the Act. Considering the aforesaid, we are unable to agree with the contention of the learned Senior Counsel for the appellants that the Bank has a lien over the surplus amount of ₹ 29,80,150.80/-. The writ court has rightly directed the appellant - Bank to refund the amount to the respondent No.1 along with interest. No case to interfere with the order dated 27/07/2016, passed by the learned writ court, as prayed is made out. Also gone through the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged property was initiated under the provisions of Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short .... the SARFAESI Act ) and, therefore, the auction took place on 11/02/2010 and the property of the respondent No.1 (guarantor) was sold by the appellants - Bank for a sum of ₹ 82,21,551/-. The total outstanding dues in respect of M/s Mayunk Industries were ₹ 52,30,101/-. An appeal was preferred before the DRT and the same was dismissed on 30/09/2011. 3. The grievance of the respondent No.1 before the writ court that his property was sold for ₹ 82,21,551/- and after adjusting the total amount i.e., ₹ 52,30,101/-, the Bank is still having surplus amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan granted M/s. Mayunk Industries. There were two separate account altogether and by no stretch of imagination, the surplus amount by taking the shelter of Section 171 of the Indian Contract could have been appropriated with the outstanding amount of M/s. Anita Steel Wire Works and directed the Bank to refund the amount in question along with interest. 7. Learned Senior Counsel for the appellants has drawn our attention to the ex-parte order dated 11/10/2010, passed in O.A. No.124/2010 and order sheets dated 5/12/2016 and 16/11/2016 of DRT and submitted that the order of attachment has been passed and, therefore, they are entitled to adjust the surplus amount of respondent No.1 in respect of outstanding dues of M/s. Anita Steel Wire Wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surplus amount are not goods within the meaning of Section 2(7) of the Sale of Goods Act, 1930 and Section 171 of the Indian Contract Act, 1872 and the issue involved in this writ appeal is squarely covered by the decision of the Apex Court in the case of Axis Bank Vs. SBS Organics Private Ltd. Anr., passed in Civil Appeal No.4379/2016 decided on 22/04/2016. Para 21 to 24 are relevant which reads as under :- 21. We are also conscious of the fact that such a pre-condition is present in several statutes while providing for statutory appeals, like The Income- Tax Act, 1961, The Central Excise Act, 1944, The Consumer Protection Act, 1986, The Motor Vehicles Act, 1988, etc. However, unlike those statutes, the purpose of the SARFAESI Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, on the request of the secured creditor but with the consent of the depositors, had already appropriated the pre-deposit towards the liability of the borrower, or with the consent, had adjusted the amount towards the dues, or if there be any attachment on the pre-deposit in any proceedings under Section 13(10) of the Act read with Rule 11 of The Security Interest (Enforcement) Rules, 2002, or if there be any attachment in any other proceedings known to law. 23. We are also unable to agree with the contention that the Bank has a lien on the pre- deposit made under Section 18 of the SARFAESI Act in terms of Section 171 of The Indian Contract Act, 1872. Section 171 of The Indian Contract Act, 1872 on general lien, is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 25 to 30. It is not the intendment of the Act that while the basic liability of the defendant is to be decided by the Tribunal under Section 17, the Banks/Financial institutions should go to the Civil Court or the Company court or some other authority outside the Act for the actual realisation of the amount. The certificate granted under Section 19(22) has, in our opinion, to be executed only by the Recovery Officer. It is also observed that the adjudication of liability and the recovery of the amount by execution of the certificate are respectively within the exclusive jurisdiction of the Tribunal and the Recovery Officer and no other Court or authority much less the Civil Court or the Company Court can go into the said questions r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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