Appeal Nos. 227, 228 and 229 of 2015. Case: Punjab and Sind Bank Vs Skippers Builders Pvt. Ltd. and Ors.. Delhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals)
| Case Number | Appeal Nos. 227, 228 and 229 of 2015 |
| Counsel | For Appellant: Rajinder Wali, Advocate and For Respondents: Rohit Aggarwal, Advocate |
| Judges | Ranjit Singh, J. (Chairperson) |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXI Rule 90; Constitution Of India - Articles 129, 141, 142; Indian Contract Act, 1872 - Section 171; Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 - Section 31 |
| Judgement Date | January 15, 2016 |
| Court | Delhi DRAT DRAT (Delhi Debt Recovery Appellate Tribunals) |
Judgment:
Ranjit Singh, J. (Chairperson)
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The appellant Bank has filed these Appeals to impugn the order passed by the Tribunal below rejecting their Appeals filed against the order passed by the R.O. declining to attach the property No. 23, Jor Bagh, New Delhi owned by Tej Properties Pvt. Ltd. since the issue involved in all these Appeals are common and relates to the same property, these Appeals are disposed of by this common order. The appellant Bank had filed application before the Recovery Officer (R.O.) on 2nd May, 2014 seeking attachment of the property 23, Jor Bagh, New Delhi primarily relying upon certain reasons recorded by the Hon'ble Supreme Court in the case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd., 1995 (SLT Soft) 779: (1996) 4 SCC 622. As per the Bank, the Hon'ble Supreme Court has lifted the corporate veil to find that Mr. Tejwant Singh was the person behind various legal entities having been created, including Tej Properties. It was accordingly pleaded that the appellant Bank is entitled to exercise a right of general lien in respect of the property in question to recover its dues in other recovery cases wherein though the property may not be specifically charged yet Mr. Tejwant Singh being the CD in all the recovery cases, this property also could be attached for recovery of the dues of Mr. Tejwant Singh, Incidentally, this property-23, Jor Bagh, New Delhi is specifically mortgaged in R.C. Nos. 107/2000 and 181/2010 about which there was/is no dispute. The appellant Bank had filed application for attachment of this property in other connected cases, i.e., R.C. No. 5/2007, R.C. No. 76/2006, R.C. No. 179/2010 and R.C. No. 59/2011. The R.O. had issued notice for attachment qua this property in question.
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Initially, Chandra Estates Pvt. Ltd. claiming interest in this property on the basis of some agreement came forward to file objections. Chandra Estates Pvt. Ltd. had also filed a Suit for specific performance of agreement dated 1st January, 1983 before the Hon'ble High Court. This Suit, however, was dismissed. Appeal preferred against this order before the Division Bench was also dismissed. Chandra Estates Pvt. Ltd. thereafter did not pursue its challenge. On the basis of above-noted facts, the Bank challenged the locus on the part of Chandra Estates Pvt. Ltd. to file objections. The R.O. accordingly dismissed these objections.
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Subsequently, fresh objections came to be filed by Tej Properties Pvt. Ltd. against the notice of attachment of the said property, i.e. 23, Jor Bagh, New Delhi. The objector Tej Properties Pvt. Ltd. claimed that it is not a certificate-debtor in the case in which the attachment of the property is being sought. Similar objections were filed by the objector in the remaining three cases also. It may need a notice here that in all there are six inter-connected cases filed by the appellant Bank against Tejwant Singh Group, its Directors/guarantors etc. for recovery of the amount due. Final orders have been passed in all the six cases and Recover Certificates have been issued by the Tribunal below. The details of these six cases are:
Concededly, 23, Jor Bagh, New Delhi is mortgaged in R.C. No. 107/2000 and R.C. No. 181/2010.
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The R.O., after considering the objections raised by Tej Properties Pvt. Ltd., has allowed the objections against the attachment of the property in R.C. No. 59/2011, 5/2007, 76/2006 and 179/2010. The Tribunal below has dismissed the Appeals filed against the orders passed by the R.O. Aggrieved against the orders passed by the Tribunal below, the Bank as filed the present Appeals.
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The appellant Bank had primarily placed reliance on the orders passed by the Hon'ble Supreme Court, to contest the objections raised by the objector Tej Properties Pvt. Ltd. to claim itself to be a separate entity. The objector had pleaded before the R.O. that the appellant Bank placed reliance on the order of attachment passed by the Hon'ble Supreme Court while ignoring the release of the property. As per the objector, the Bank was trying to interpret the order of the Supreme Court in such a manner which would be contrary to the legal provision. The main prayer was that the property in question is owned by Tej Properties Pvt. Ltd. and it did not belong to CDs 1 to 4 and so it cannot be attached in the recovery cases. The objector also made reference to the plea of the Bank regarding lifting of corporate veil without showing any document. Similar pleas on the basis of release of document and sale of properties having monitored by the Supreme Court were also raised.
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The Bank had filed reply to the objections raised by Tej Properties Pvt. Ltd. The Bank had pleaded that the reply filed by it in response to the objections filed by Chandra Estates Pvt. Ltd. may be treated as reply to the present objections. The Bank had pointed out that this property was mortgaged with the CH Bank by depositing the title deed in R.C. No. 107/2000 and R.C. No. 181/2010. Besides this, there are four other recovery cases pertaining to the same group wherein Mr. Tejwant Singh, Ms. Surender Kaur are CDs, which included present R.C as well. The plea of the Bank was that the Hon'ble Supreme Court vide its order dated 8th February, 1995 in the matter titled DDA v. Skipper Constructions DDA v. Tejwant Singh, had attached all the properties and Bank accounts standing in the name of contemners therein, i.e. Mr. Tejwant Singh and Surender Kaur and director of Skipper Constructions Co. Pvt. Ltd. and their wives, sons and unmarried daughters.
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The Hon'ble Supreme Court, after lifting the corporate veil had observed that the contemnors therein were CDs before the present forum and had formed many companies to defraud creditors. 23, Jor Bagh, New Delhi standing in the name of Tej Properties Pvt. Ltd. with Tejwant Singh as its Director also stood attached under the orders of the Hon'ble Supreme Court. The Bank would point out that it is only on the application filed by the Bank that the Hon'ble Supreme Court in its order dated 21st April, 2014 gave liberty to the parties concerned to approach appropriate forums for redressal of their grievance in accordance with law. The attachment order passed qua property No. 23, Jor Bagh, New Delhi also stood removed to enable the Bank to realize its dues by approaching the appropriate forum. As already noticed, this property was attached in R.C. Nos. 107/2000 and 181/2010. The Bank would urge that the property in question would be liable to be attached in other four R.Cs. pending before the Tribunal as this in fact is the property owned by CDs as has been found by the Hon'ble Supreme Court after lifting the corporate veil.
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The R.C. in the present case was issued for recovery of Rs. 41,26,933.85 with interest @ 13.5% p.a. with quarterly rests. This Tribunal had awarded interest (a. 10% simple for pendente lite and future period. As per the Bank, the property in question is an asset belonging to the CD as has been found by the Hon'ble Supreme Court and the Bank being secured creditor is entitled to exercise general Bankers lien on the said properly to recover its dues as per the R.C in all group accounts.
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The R.O., after considering all the pleas, has observed that the Hon'ble Supreme Court had released this property from attachment which the Apex Court would not have done if after lifting the corporate veil it had been revealed that the property is of the CDs. The R.O. has also taken note of the order whereby the Hon'ble Supreme Court has mentioned the sale of the assets of the Skipper Group. It is observed that after verifying the claims of the investors, a sum of Rs. 9,10,59,691/- had remained as corpus after winding up of the office of the claim commission and out of that amount a sum of Rs. 5 crores was distributed to five charitable institutions. As held by the R.O., only the immovable property of the defaulted in liable to he attached in view of Second Schedule to the Income-tax Act. Observing that the property stood in the name of the objector Tej Properties Pvt. Ltd. which is an independent corporate existence and is regarded as separate entity, the R.O. has considered the plea for attachment of the property. As per the R.O. the question of lifting of corporate veil did not arise as the Bank has not been able to show anywhere that the loan amount availed in F.C. Nos. 59/2011, 5/2007, 76/2007 and 179/2010 had ever been utilized by the CDs in purchasing the company property in question. The prayer for attachment was accordingly declined.
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The Tribunal below, while deciding the Appeal filed by the Bank, has held that the property is owned by Tej Properties Pvt. Ltd. company is not a borrower, mortgagor or guarantor and the cases where attachment is sought, the company is not even a CD. The Tribunal has taken note of the submission made by the Bank that the property in fact belonged to the company owned by Tejwant Singh who is a CD and the Supreme Court has lifted the corporate veil to find this fact and so the property can be proceeded against to recover the dues of the Bank. The Tribunal has ultimately upheld the order passed by the R.O. by observing that this property was purchased by the company after the filing of the Original Applications (O.As.).
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It is held the case set up in these O.As. is not that the defendants had utilized the loan to purchase this property. Since the property is mortgaged in two R.Cs. the property can be proceeded against in these R.Cs. The Tribunal has observed that the company is a juristic person and had mortgaged these properties in two cases and so, the Bank could not bring a nexus with this property and the claim in the O.As. The Appeal was accordingly dismissed. Aggrieved against the same, the Bank has now filed the present second Appeal.
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The Counsel for the appellant Bank has heavily relied upon the observation/finding recorded by the Hon'ble Supreme Court in the case of Delhi...
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