Can client go for writ petition when drt gave incomplete decision against sale notice?
K.K.Ganguly
(Querist) 28 December 2011
This query is : Resolved
Ld. Experts kindly opine.
1) My client, an SSI unit of Siliguri had taken laon from Bank & could not repay,
2) Bank filed application before DRT as per RDDBFI Act, 1993 when a compromise settlement was arrived at & Compromise Decree was given by DRT due to which my client was to pay Rs.11 lakhs with in 30.09.2007 in place of Rs.40 lakhs by selling the factory land as, otherwise the compromise will be withdrawn.
3)The Bank had put a board before the factory stating that it has been taken over by Bank & did not give any no objection certificate to my client to sale the land to pay the amount & he defaulted in paying with in time but paid after the time period which the Bank received.
4) Bank issued demand notice u/s13(2) & by mistake our lawfirm went to DRT prematuredly. After some time our advocate was absent & the case was dismissed in dafault during which the Bank promptly issued notice u/s13(4)& took possession of the factory.
5) The dismissed case (which was wrongly filed after getting notice u/s13(2)) which was dismissed because of absence of advocate was restored & against our petition, DRT issued stay order against the said notice u/s13(4)and asked to pay Rs.1lakh.Meantime against each application DRT asked to pay & our client paid Rs.14 lakhs taking personal loan against compromise of Rs.11 lakhs.
6) Now, the said case, wrongly filed by us prematurely, has been dismissed by DRT on maintenibility ground & the Bank has issued Sale Notice to sell the factory on 09.12.2012.
7) We filed application before DRT afresh asking for exclusion of period of delay as the matter was under litigation, u/s14 of Limitation Act mentioning that stay was aleady given on the notice u/s13(4) and that is why we could not file application against the said notice u/s13(4).
8) DRT has rejected the injunction prayer 20.12.2012 in one page order mentioning that detailed order is given in separate sheet which has not even been dictated due to paucity of time & has not come till date but the sale date is approaching.
9) We do not know why the injunction has been rejected. (It is mentioned that I do not find any reason).Detailed order did not come till date. DRT will sit on 03.01.2012 & 06.01.2012 & we will get the order after that when the sale will take place on 09.01.2012.
My question in this serious situation is
a) What should we do now to stop the sale of the factory,
b) We can not go to DART because client can not pay 25% of the notice amount of Rs.40 lakhs when he has already paid more that the compromise amount b y taking personal loan & he could not pay with in the stipulated period since the Bank did not issue No Objection Certificate.
c) If we file review petition before DRT on 03.01.2012 or 06.01.2012, it will be too late & the property will be sold out,so what to do now,
d) Can we file write petition before the Hon'ble High Court for a stay in the said sale?
Thanks in advance.
d)
R.Ramachandran
(Expert) 28 December 2011
Dear Mr. Ganguly,
In the fact situation narrated by you, only approaching the HC by means of a WRIT petition seems to be an efficacious remedy. Wish you all the bests.
Rajeev Kumar
(Expert) 28 December 2011
From the facts you should file writ petition before HC
prabhakar singh
(Expert) 28 December 2011
YOU SEEM TO HAVE NO ALTERNATE EXCEPT TO TRY YOUR LUCK BY A WRIT,ALTHOUGH APPEAL LIES BUT
WITH OUT ORDER YOU CAN NOT FILE HENCE WRIT IS THE ONLY EQUITABLE ALTERNATE.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 December 2011
It is not clear whether physical possession was taken after going through all the formalities mentioned in law, pl clearify.
1) You must take objection to sale on the grounds of illegal possession even though cases dismissed by DRT.
2) HC- writ is not proper step , it will not be entertained and will be dismissed as premature.
GO TO DART IN APPEAL TO DRT ORDER, DO YOUR HOME WORK PROPERLY AND FIND AS MANY LEGAL LAPSES AS POSSIBLE, NOT ALLOWING SALE BEING MAJOR POINT.
Use some legal tactics and even can get stay from local courts against proposed sale.
Advocate. Arunagiri
(Expert) 28 December 2011
You can challenge the order of the DRT by way of appeal to DRAT.
Deepak Nair
(Expert) 29 December 2011
Go for appeal as suggested by Mr.JSDN
J K Agrawal
(Expert) 29 December 2011
Dear Mr Ganguli
If once the parties has come at at sattlement for rs 11 lakh and the same is paid (even at later stage but by consent). I think the matter is over and nothing is payable.
The consent award is final in all respect and amounts equal to a civil decree. It is as good as an award under Indian Arbitration Act.
Now the bank only can do to to file a civil execution of the sattlement For Rs 11 lakh.
You can go to even a civil court to obtain injunction as the matter is out of jurisdiction of DRT or SARFAESI.
Further your client is a limited company it has a further option of winding up and many more.
RAJU O.F.,
(Expert) 30 December 2011
Immediately file an Appeal u/S.18 of SARFAESI Act before DRAT and pray for stay of sale. Normally DRAT can allow 2 months time for remittance of Deposit of minimum 25% of claim, also restraining bank from further proceeding. If you did not get immediate relief from DRAT, then file writ before High Court; mention the status with DRAT case and seek stay of sale. High Court also would stipulate condition to deposit some amount and direct to continue the matter with DRAT.
