IN THE DEBT RECOVERY TRIBUNAL, BIHAR PATNA

Appeal Case No. 13 of 2014

IN

R. P. Case No. 89 of 2013

M/s Shri Mahavir Enterprises Pvt. Ltd. ………Appellants

Versus

Syndicate Bank and Others …….Respondents

The humble reply on behalf of

the respondent No. 2, 3 4 and 5

above named;

MOST RESPECTFULLY SHEWETH :-

1. That the answering respondent have paid the sale consideration pursuant to

the auction of the assets in question and therefore have been added as party

respondents in this appeal.

2. That the instant appeal is not maintainable and is liable to be dismissed for

want of jurisdiction of this Hon'ble tribunal.

3. That the instant appeal has been filed U/s 30 of the D.R.T. Act which is not

maintainable.

4. That the order under challenge i.e. dated 08.09.14 passed by learned

Recovery officer is not amenable to the jurisdiction of this Hon'ble tribunal

U/s 30 of the D.R.T. Act but to Rule 61 of the Schedule II of the Income

Tax Act 1961.

5. That the appellant having not filed an application for setting aside the sale in

question under Rule 61 of the aforesaid rules and also having not explained

the cause behind not choosing to file such application before the learned

Recovery officer within the prescribed limitation has no locus to challenge

the impugned order in this jurisdiction of this Hon'ble tribunal.

6. That the relief prayed for in the instant appeal is further barred by the

doctrine of respondent judicata in light of the fact that the appellant never

challenged the order of the learned Recovery officer fixing sale of the assets

in question especially when the issues raised herein were available very

much to the appellant on 25.03.14, 08.05.14 and 04.08.14 when the learned

Recovery Officer had ordered auction of the mortgaged assets of the

appellant.

7. That it is further stated that the statements contained in para – (v)(i) to (xxiv)

being issues of record require no comments.

8. That as against the statements contained in para (v)(xxv) it is stated that the

publication of sale notice in newspaper on 11.08.14 and non – furnishing of

copy of publication before the learned Recovery Officer are directory

conditions stipulated in the order dated 04.08.14 and it is for the appellant to

establish as to how and in what manner the appellant has been prejudiced

which finds no place in the entire memo of appeal.

9. That the statements contained in para (v)(xxvi) to (xxix) are matter of record

and as such require no comments.

10.That as against the statements contained in para (v)(xxx) it is stated that the

issue raised by the appellant is misconceived and not available to be raised

at this stage because the order dated 30.06.14 passed by learned Recovery

officer would show that the appellant had simply raised a verbal objection

against valuation and had not seriously filed any objection in writing nor

brought any documents or materials to corroborate the issues raised in the

objection. However the learned Recovery Officer inspite of very causal

approach of the appellant would appear to have taken all necessary steps to

overcome any such lacuna likely to affect the sale proceedings and as such

the order dated 04.08.14 would indicate the respondent bank was directed to

clarify the govt. circle rate of the assets by 02.07.14.

11.That the order dated 02.07.14 would further show that the respondent bank

produced before the learned Recovery Officer the govt. circle rate on

02.07.14 which was duly verified by the learned Recovery Officer and

thereupon it was recorded in the order dated 02.07.14 that the reserve price

of the assets was more than the circle rate. Besides, the order of the learned

Recovery officer passed on 02.07.14 was the proper stage of the proceedings

when the appellant could have challenged the order in appeal U/s 30 of the

D.R.T. Act.

12. That since the order dated 02.07.14 till the order dated 08.09.14 it would

appear that the appellant has not filed any objection at any stage of the

proceedings regarding inadequate price fixation and improper valuation of

the assets etc. rather has chosen to wait and watch the exercise and

subsequently come out with objections to the sale proceedings.

13.That the statements contained in para (v)(xxxi) is misinterpretation of the

rates and guidelines contained in the schedule of rates annexed with the

memo of appeal. The land sold by the learned Recovery Officer is whether

residential or commercial cannot be decided by this Hon'ble tribunal in

appellate jurisdiction. The description of the land in question as adopted and

declared to be residential land by the valuer was already examined by the

learned Recovery officer and looking into every aspect of the matter the

reserve price was fixed and auction held.

14.That as against the statements contained in para (v)(xxxiii) and (xxxiii) in

the facts and circumstances of the case would appear to be misconceived and

baseless issues raised by the appellant just to let the sale confirmation to

remain in limbo.

15. That it is further stated that the appellant has not raised any issue relevant

and important so as to render the sale proceedings vitiated and unsustainable

in the eye of law. No irregularity so as to require interference of this Hon'ble

tribunal has been shown by the appellant and as such the appeal is liable to

be dismissed with cost.

16.That if at all the appellant claimed the assets under sale to be so valuable the

appellant either should have challenged the earlier passed by the learned

Recovery Officer fixing the auction sale of the assets or should have

challenged the valuation report but no such steps were ever taken which

itself demolishes the claim of the appellant in the instant appeal.

17.That the appellant has sought to challenge the sale proceedings on the basis

of flimsy grounds without any material in support of it. It is settled practice

in society that the market forces and usefulness of a land determine it’s rate

and not rates on paper records. It is further stated that any person may

assume the rate of any land or building for any highest possible figure but

the actual recoverable price varies on account of many factors. Besides the

appellant has not produced any sale deed of neighboring land assets in order

to set out an instance of gross irregularity having taken place while settling

the reserve price of the assts.

18.That besides it is further stated that the appellant is a defaulter and as would

appear from the records of the recovery proceedings the appellant has not

paid the loan dues of the respondent bank till date and therefore the sale in

question was necessitated which may not be allowed by this Hon'ble tribunal

to be disturbed at this stage especially when the appellant has not been able

to make out any case of interference and also having chosen a wrong

procedure and forum.

19.That the conduct of the appellant has attracted the application of doctrine of

respondent – judicata and as such the appeal filed at this stage is not

maintainable in the eye of law.

20. That the answering respondents have deposited the entire sale consideration

well within the stipulated time and as such there is no default on part of the

answering respondents.

21.That it is further stated that the additional ground raise by the appellant in

supplementary petition is a technical objection and is of no avail in as much

as the issuance of sale certificate in favor of respondent no. 2 to 5 is merely

to facilitate the respondent purchaser namely Ask Vision Impex Pvt. Ltd. to

make payment of the huge amount of sale consideration and to avoid any

complication in future as regards the claim of rights of the parties. The

learned Recovery Officer has simply issued the certificate in joint names as

requested by the respondent purchaser company which is not prohibited

anywhere in the rules contained in Schedule II to the Income Tax Act 1961.

22.That besides it is only the respondent no. 2 whose interest may be affected

by such issuance of sale certificate in favor of other respondents together

with the respondent no. 2 who himself has made such a request, as such

there is no scope of any allegation of underhand dealing in the sale

proceedings. It is also relevant to state here that the said procedure adopted

by the learned Recovery Officer is simply to accommodate the purchaser

company who succeeded the auction to get proper documentation done of

the assets and it’s shares at later stage and there is nothing to gain in such

process.

23.That the appellant ha raised wild allegation without any instance of any

substantial injury caused and as such the appeal herein is liable to be

dismissed with heavy cost.

24. That it is further stated that the appellant has challenged the sale of Lot No.

B(ii) only on the basis of wrong valuation and fixation of reserve price

whereas the same valuer applying same standards and parameters of

valuation has determined the value of other lots under sale which has been

accepted by the learned Recovery Officer. As such there is no irregularity in

the sale proceedings and warrants no interference by this Hon'ble tribunal.

25.