BANK OF INDIAversusYADAV CONSULTANCY SERVICES (P) LTD. AND ANR.

                      [2017] 12 S.C.R. 67



                        BANK OF INDIA                                A
                                  v.
   YADAV CONSULTANCY SERVICES (P) LTD. AND ANR.
                  (Civil Appeal No. 5150 of2017)
                      DECEMBER 05, 2017                              B
       [KURIAN JOSEPH AND R. BANUMATHI, JJ.]
      Recovery of Debts due to Banks and Financial Institutions
Act, 1993 - s. 3/A - Suit for recovery, filed by Bank against debtors
- Recovery proceedings - Attachment of property followed by C
auction - Issuance of certificate of sale in favour of auction
purchasers - Since, Certificate Debtors creating obstruction in
delivery of possession of the property to auction purchasers, first
respondent appointed as Court Commissioner - Direction to the
Bank to pay sen1ice charges to first respondent - Even though the
Bank had decided to discharge the Court Commissioner with effect D
from 08.05.2007 and the Bank also paid charges of first respondent
upto 08.05.2007, and possession of the property was handed over
to the auction purchasers, the Recovery Officer directed the Bank
to continue to pay the charges to first respondent - Jn appeal,
recovery officer directed the first respondent to take steps for E
recovery of its charges from auction purchasers from 08.05.07 -
First respondent after pursuing the matter before DRT, DRAT and
High Court, sought arbitration before Micro, Small and Medium
Enterprises Development Facilitation (MSMEDF) Council - Award
passed by MSMEDF Council directing the Bank to pay
Rs.J,62,82,0791- with interest @ 24% to first respondent - Upheld F
by the District Judge and the High Court - On appeal, held: Order
of the Recovery Officer makes it clear that the continuation of the
services of the first respondent for safeguarding the auctioned
property was only on behalf of auction purchasers and that only
the auction purchasers were bound to pay the charges for security
                                                                      0
sen1ices to the first respondent - Bank was under no obligation to
pay the charges to the first respondent in any case after
24.07.2008(order of DRT) - High Court was not right in saying
that DRT had no jurisdiction to entertain the appeal and, thus, the
order would be non est - When the parties were vigo1vusly pursuing
the matter before DRT, DRAT, having trappings of the civil court, H
                             67
68           SUPREME COURT REPORTS                     [2017] 12 S.C.R.


A    and also before the High Court, first respondent was not right in
     approaching MSMEDF Council - Award passed by MSMEDF
     Council, as affirmed by District Court and also by High Court not
     sustainable - Micro, Small and Medium Enterprises Development
     Act, 2006.
B          Allowing the appeal, the Court
           HELD: 1.1 The order of the Recovery Officer makes it
     clear that the continuation of the services of the first respondent
     for safeguarding the auctioned property was only on behalf of
     auction purchase1·s and that only the auction purchasers were
c    bound to pay the charges for security services to the first
     respondent. The first respondent's duty as "Court
     Commissioner" had ceased to exist on 13. ! 1 .2006. After
     13.11.2006 or at least after 24.07.2008 (Order of IJRT), for th;!
     services of respondent No. 1, if any, were availed by the auction
     purchasers, only the auction purchasers are liable to pay the said
D    charges to respondent No. 1. The appellant Bank, therefore, was
     under no obligation to pay the charges to the first respondent in
     any case after 24.07.2008. The High Court has not kept in view
     the order of DRT dated 24.07.2008 and the order of the Recovery
     Officer dated 25.03.2009. The High Court was not right in saying
E    that DRT had no jurisdiction to entertain the appeal and, therefore,
     the order would be non est. [Para 10] [75-D, G-H; 76-A, D-E]
            1.2 After the order of the Recovery Officer, respondent
     No. 1 filed application before DRT seeking payment of charges
     for security services from the auction purchasers as directed by
F    DRT in its order which clearly indicates that the first respondent
     had accepted the said order of DRT and also acted upon it. Be it
     noted, the proceedings of the Recovery Officer in which all the
     parties participated proceeded mainly on tht: basis of the order
     of DRT. The High Court held that DRT had no jurisdiction to
     entertain Appeal, the order dated 24.07.2008 passed by it would
G    be 11011 est and hence must be ignored." The High Court did not
     keep in view that the respondent No. 1 had not challenged the
     order of DRT; and had acquiesced to the said order and also acted
     upon it. The su_bsequent proceedings clearly show that respondent
     No. 1 and other parties have accepted the order of DRT and acted
H    upon it. [Para 11] [76-F-H; 77-A]
  BANK OF INDIA v. YADAV CONSULTANCY SERVICES (P)                      69
                    LTD. AND ANR.

      1.3 The proceedings were conducted before DRT under              A
RDDBFI Act, 1993 which finally culminated in DRT's order dated
24.07;2008 and had become final and binding and was also
accepted and acted upon by respondent No.1. DRT and DRAT
are not merely having the trappings of the courts but also vested
with the powers of ordinary civil court including the power to
                                                                       B
summon and examine the witnesses on oath, the power to order
inspection of the documents etc. When the proceedings were
lawfully conducted before the quasi-judicial authorities like DRT
and DRAT, having trappings of the civil court, MSMEDF Council
had no jurisdiction to entertain the application filed by the first
respondent; more so, when the orders passed by the DRT were            C
accepted and acted upon by respondent No.I. The High Court
did not consider the question of lack of jurisdiction of MSMEDF
Council. [Para 12] [77-C-E]
      1.4 The High Court mainly seems to have proceeded with
the matter as if it is a regular appeal arising out of the award       D
passed by the MSMEDF Council and commenting upon the
conduct of the Bank in not seriously pursuing the matter in
challenging the award. The High Court did not consider the earlier
proceedings before DRT, DRAT and before the High Court except
merely referring to certain proceedings before DRT and DRAT.
The High Court did not consider various orders passed by DRT           E
and DRAT and the conduct of the parties who have been vigorously
pursuing the matter before DRT, Recovery Officer and DRAT.
The High Court also did not keep in view that the parties were
bound by the earlier orders passed by DRT and Recovery Officer
which clearly held that charges towards security services are          F
payable only by the auction purchasers. Thus, the order passed
by the High Court suffers from serious infirmity. [Para 13] [77-F-
H; 78-A]
      1.5 Pursuant to the order dated 19.03.2013 passed by the
High Court, an amount of Rs.1,93,22,590/- was deposited by the
                                                                       G
appellant Bank. By an order dated 30.03.2016 passed by DRT,
respondent No.1 has withdrawn an amount of Rs.1,22,00,000/-
(Rs.1,00,00,000/- plus accrued interest). The balance amount of
Rs.93,22,590/- is lying in deposit with the District Court. By order
dated 22.04.2016, this Court has granted interim stay of the
impugned order of the High Court. However, by order dated              H
70            SUPREME COURT REPORTS                       [2017] 12 S.C.R.


A 24.10.2016, respondent No.I was permitted to withdraw 50% of
  the said amount Rs.93,22,590/- on furnishing a bank guarantee.
  The first respondent has not withdrawn the said 50% amount of
  Rs.93,22,590/- as he has failed to furnish bank guarantee. The
  impugned judgment of the High Court is set aside and resultantly
B the award passed by the MSMEDF Council is also set aside. The
  appellant Bank is free to recover the amount of
  Rs.1,22,00,000/- withdrawn by the first respondent after adjusting
  the payments due up to 24.07 .2008. The bank is permitted to
  withdraw the amount of Rs.93,22,590/- along with accrued
  interest. So far as the charges towards security services payable
C to the first respondent after 24.07.2008, liberty is granted to the
  first respondent to proceed against the auction purchasers in
  accordance with law. [Para 14-15] [78-B-E]
          CIVIL APPELLATE JURISDICTION: Civil Appeal No ..5150
     of2017.
D          From the final Judgment and Order dated 19.11.2015 of the High
     Court of Judicature at Bombay in ARA No.15/2014.
           DushyantA. Dave, Sr.Adv, Vipin Kumar Jai, Vipul Jai, Ms. Shaily
     Dinkar, Ad vs for the Appellant.
           Respondent-in-person.
E
           The Judgment of the Court was delivered by
            R. BANUMATHI, J. I. This appeal is preferred against the
     judgment dated 19.11.2015 passed by the High Court of Judicature at
     Bombay in ARA No. 15 of 2014 dismissing the appeal of the appellant
F    Bank thereby affirming the judgment of the District Judge, Pune and the
     award passed by the MSMEDF Council directing the appellant Bank to
     pay Rs. J ,62,82,079/- with interest at the rate of24% to respondent No.
      1 and also pay cost of Rs. 5,00,000/- to respondent No. I.
            2. The matter has a chequered history of two decades. Brief
G    facts which led to filing of this appeal are as follows:- The appellant
     Bank filed suit in Special Suit No. 628 of 1998 for recovery of Rs.9 .55
     lakhs along with interest against one Mis Sona Aluminium Finishers (P)
     Ltd. The said suit was decreed on 30.01.1999. Since the decreed amount
     exceeded rupees ten lakhs, in view of Section 31-A of Recovery of
     Debts due to Banks and Financial Institutions (RDDBFl4Act, 1993, the
H
  BANK OF INDIA v. YADAV CONSULTANCY SERVICES (P)                          71
           LTD. AND ANR. [R. BANUMATHI, J.]

recovery proceedings were transferred to the Recovery Officer, Debt        A
Recovery Tribunal (DRT), Pune and registered as R.P. No. 06/2002.
After attachment of the property, the property was auctioned on
08.03.2006. By order of DRT dated 14.07 .2006, certificate of sale was
issued in favour of auction purchasers-respondents No. 3 to 5. Since the
Certificate Debtors (Mortgagor/Guarantor) were said to be creating
                                                                           B
obstruction in delivery of possession of the property to the auction
purchasers, by order dated 26.07 .2006, the Recovery Officer, DRT, Pune
appointed respondent No.1 as '"Court Commissioner". The appellant
Bank was directed to pay service charges to the first respondent.
Respondent No. 1 took possession of the property on 09.11.2006. Auction
purchasers filed an application in R.P. No. 06 of2002 on 13.11.2006 and    C
DRT, Pune on the same date i.e. 13.11.2006 directed respondent No. I
to hand over the possession of the subject property to the auction
purchasers.
      3. There was then a dispute between the appellant Bank and
Mis Sona Aluminium Finishers (P) Ltd. - Certificate Debtor and the D
same came to be compromised; however the same failed due to non-
compliance of the terms and conditions of the compromise. Appellant
Bank sent letter dated 04.05.2007 informing the first respondent that
they had decided to discharge the Court Commissioner with effect from
08.05.2007 and the Bank also paid the charges of respondent No. l up       E
to 08.05.2007. However, the Recovery Officer by his order dated
12.06.2007 directed the appellant Bank to continue to pay the charges to
respondent No. 1 which was challenged by the appellant Bank before
the Presiding Officer, DRT, Pune by preferring Appeal No. 25 of 2007.
In Appeal No. 25 of 2007, vide order dated 24.07.2008, DRT set aside
the order of the Recovery Officer and directed the first respondent to     F
take steps for recovery of its charges from the auction purchasers from
08.05.2007. Be it noted, respondent No. 1 had not challenged the order
dated 24.07.2008; but filed an,application on 07.11.2008 in R.P. No. 061
2002 seeking for direction to the auction purchasers to pay its charges.
Only the auction purchasers challenged the order of DRT dated
24.07 .2008 before Debt Recovery Appellate Tribunal (DRAT), Mumbai         G
in Appeal No. 589 of 2008 wherein respondent No. 1 was one of the
respondents. When the said appeal filed by the auction purchasers was
pending before DRAT, the first respondent filed Writ Petition No. 10259
of201 l seeking direction from the High Court to expedite hearing of the
                                                                           H
72            SUPREME COURT REPORTS                        [2017] 12 S.C.R.


A    said appeal and dispose the same at an early date. The said writ petition
     was disposed of by order dated 16.01.2012 directing DRAT, Mumbai to
     decide the appeal within a period of three months and accordingly, the
     said Appeal No. 589 of2008 was dismissed for default on 30.05.2012.
          4. After so pursuing the matter before DRT, DRAT and the High
B Court,    the first respondent instead of challenging the order dated
  30.05.2012, sought arbitration before Micro, Small and Medium
  Enterprises Development Facilitation Council (MSMEDF Council), Pune
  under Micro, Small and Medium Enterprises Development (MSMED)
  Act, 2006. The MSMEDF Council passed an ex parte award on
  12.09.2012 directing the appellant Bank to pay a sum of Rs. 1,62,82,079/-
c to respondent No. 1 within the period of one month from the date of
  award i.e. 12.09.2012 with interest at the rate of24%. In the incidental
  proceedings arising out of the award passed by the MSMEDF Council,
  by order dated 19.03.2013 in Writ Petition No. 2877 of2013 filed by the
  appellant Bank, the High Court stayed the order of the District Judge,
D Pune passed in DKT No. 1741 of 2012, subject to deposit the entire
  decretal amount that is Rs. 1,93,22,590/- within one week with the
  Registrar, High Court of Judicature at Bombay and the appellant Bank
  had deposited the said amount. Appeal filed by the appellant Bank under
  Section 34 of the Arbitration and Conciliation Act, 1996 being Civil
  Application No. 352 of 2013 was dismissed by the District Judge, Pune
E vide order dated 16.06.2014. Further appeal filed by the appellant Bank
  under Section 37 of the Arbitration and Conciliation Act, 1996 in
  Arbitration Petition No. 15 of2014 came to be dismissed by the High
  Court inter alia on various grounds:- (i) DRT has no jurisdiction to
  entertain the appeal and therefore order dated 24.07.2008 would be non
F est; (ii) MSMED Act, 2006 was specially enacted to deal with dispute of
  delayed payments to service providers and the MSMEDF Council had
  jurisdiction to adjudicate the dispute; and (iii) Bank has not taken any
  step to take possession from Court Commissioner after paying the
  charges; but it has simply refused to pay the charges and dragged the
  litigation. Being aggrieved, the appellant Bank preferred this appeal.
G
           5. We have heard at length Mr. Dushyant Dave, learned senior
     counsel appearing for the appellant Bank and Mr. Prakash Wamanrao
     Yadav-the first respondent who appeared in-person. We have carefully
     considered the rival contentions and perused the impugned judgment
     and the materials on ·record.
H
  BANK OF INDIA v. YADAV CONSULTANCY SERVICES (P)                             73
           LTD. AND ANR. [R. BANUMATHI, J.]

       6. Upon consideration of the rival contentions, the following points   A
arise for consideration in this appeal:-
      1.     When the obligation of the appellant Bank to pay the charges
             expired on 30.11.2006, when the physical possession of the
             subject property was handed over to the auction purchasers
             and when the order dated 24.07 .2008 of Debt Recovery            B
             Appellate Tribunal, Pune has attained finality, can the first
             respondent claim charges for security services from the
             appellant Bank?
      ii.    Whether the High Court was right in saying that DRT had no
             jurisdiction to entertain the appeal and that the order dated    c
             24.07.2008 would be non est?
      111.   When the first respondent was appointed as Court
             Commissioner through the order of the Recovery Officer in
             the proceedings before DRT in R.P. No. 06/2002 and when
             the parties were vigorously pursuing the matter before DRT,      D
             DRAT and also before the High Court, whether the first
             respondent was right in approaching the Micro, Small and
             Medium Enterprises Development Facilitation (MSMEDF)
             Council, Pune;
                                     -and-                                    E
      iv. Whether the award passed by the Micro, Small and Medium
          Enterprises Development Facilitation (MSMEDF) Council,
          Pune affirmed by the District Court and also by the High
          Court is sustainable?
       7. The auction of the property was conducted on 08.03.2006 and         F
the sale of the auctioned property was confirmed on 14.07.2006 and the
sale certificate was issued in favour of the auction purchasers on the
same date. The Recovery Officer appointed the first respondent as
Court Commissioner on 26.07.2006 and the fees of the first respondent
to be directly paid by the Certificate Holder Bank. On 13.11.2006, the        G
appellant Bank filed purshis praying to hand over the possession of subject
property (Pavitra Hall) to the auction purchasers and on the same date
i.e. 13.11.2006, on the application filed by the auction purchasers,
possession of the subject property was handed over to the auction
purchasers and they have also issued acknowledgement of possession.
                                                                              H
74            SUPREME COURT REPORTS                        [2017] 12 S.C.R.


A    On the same date i.e. 13.11.2006, purshis on behalf of the auction
     purchasers was also filed in R.P. No~ 06 of 2002 before DRT in and by
     which the auction purchasers undertook to pay all expenses as required
     to protect their possession. Purshis of expenses filed by the auction
     purchasers reads as under:-
B          "Purshis of expenses
           Purshis on behalf of auction purchaser is as under:
          a) That from the time of taking possession i.e. 13.11.2006 of
             auctioned property as purchased i.e., ''Pavitra Hall", the
             Auction Purchaser shall bear all the expenses as may be
c            required to protect their possession, including payments if
             required to be made to the security personnel. That the Auction
             Purchaser shall be liable accountable & duty bound to
             safeguard the possession to the exclusion of all others
           b) Hence this purshis."
D
              8. The appellant Bank sent the communication to the first
     respondent on 04.05.2007 calling upon him to get his bill cleared for Rs.
     30,866/- being the charges for security services at "Pavitra Hall" up to
     08.05.2007. In the said communication, Bank had made it clear that
     " ..... no further payment will be made to you (Yadav Consultancy)
E    by the Bank ..... "; however, the Recovery Officer by his Jetter dated
     12.06.2007 directed the appellant Bank to continue to pay the charges
     for security services to the first respondent. Appellant Bank challenged
     the said order of Recovery Officer dated 12.06.2007 before DRT in
     Appeal No. 25 of 2007. DRT set aside the said order of the Recovery
F    Officer and directed the Recovery Officer to recover Court
     Commissioner charges from 08.05.2007 from the auction purchasers.
     We may usefully refer to the said order of the DRT dated 24.07.2008
     which reads as under:-
           " .......The Court Commissioner was appointed at the instance of
           the Recovery Officer and the Recovery Officer has wrongly
G
           saddled the appellant to pay the charges. The Court Commissioner
           should not suffer in the present proceeding and, therefore,
           Recovery Officer is directed to recover Court Commissioner
           charges from 08.05.2007 till his discharge from the auction
           purchasers ........ "
H
  BANK OF INDIA v. YADAV CONSULTANCY SERVICES (P)                              75
           LTD. AND ANR. [R. BANUMATHI, J.]

       9. The first respondent has not challenged the order ofDRT dated        A
24.07.2008; but even filed application on 07.11.2008 before DRT, Pune
seeking for direction to the auction purchasers to pay the Court
Commissioner charges to the first respondent. The first respondent had
also filed contempt petition against the appellant Bank and the auction
purchasers. The Recovery Officer had heard all the parties including
the Certificate Debtor (CD) who prayed for setting aside the sale of the       B
auction property "Pavitra Hall". The Bank inter alia prayed that the
auction purchasers be directed to pay the Court Commissioner charges
only up to 13.11.2006 and discharge the Court Commissioner from that
date. After considering the rival claims of all the parties, by order dated
25.03.2009 in R.P. No. 06/2002, the Recovery Officer held that the             C
continuation ofrespondent No. I for safeguarding the auctioned property
was solely on behalf of auction purchasers and his duty as "Court
Commissioner" had ceased to exist on 13.11.2006.
       10. Order of the Recovery Officer dated 25.03.2009 makes it
clear that the continuation of the services of the first respondent was        D
only on behalf of auction purchasers and that only the auction purchasers
were bound to pay the charges for security services to the first respondent.
The relevant portion of the order of the Recovery Officer reads as under:-
      "8 ......The Auction Purchasers have not filed any application to
      discharge the said Agency, therefore, they have opted to continue        E
      the services, of the said Agency, in exercise of their discretion
      and in furtherance of their Exh 225. This Tribunal would therefore
      not be inclined to accept the prayer of CH to discharge the said
      Agency, as doing so is likely to prejudice the Auction Purchaser's
      rights, in the matterofpreservation and protection of the auctioned
      property, and violation of their rights, and discretion, as the CH       F
      has no concern in the preservation or protection of the auctioned
      property from 13.11.2006 i.e., since the Auction Purchasers having
      filed Undertaking at Exh 225.
      9 ..........The status of the said Agency as "Court Commissioner"
      appears to be lost from 13.11.2006, as thereafter the "Court             G
      Commissioner" appears to have continued to safeguard the
      auctioned property for and on behalf of the Auction Purchasers,
      in furtherance of their private arrangement, particularly in light of
      Exh 225 of the Auction Purchaser. The term "Court
      Commissioner" as used by CH in its application Exh 308 therefore         H
76            SUPREME COURT REPORTS                         [2017] 12 S.C.R.



A          is a misnomer. The said Agency from 13 .11.2006 does not appear
           to have rendered services to the Auction Purchasers as "Court
           Commissioner" but as a private agency ............ The order of the
           Hon'ble PO dated 24.07.2008, passed in Misc. Civil Appeal
           25/2007 whereby, it appears, relief is granted to the Auction
           Purchasers, who have been directed to pay the Court
B
           Commissioner charges w.e.f. 08.05.2007. Therefore, I am not
           required to go into the said aspects again, as the same having
           reached finality, as from the available record and papers, no appeal
           appears to be filed against the said order dated 24.07.2008 .... "
            The above order of the Recovery Officer makes-it-clear that the
c    continuance of respondent No. 1 for safeguarding the auctioned property
     was solely on behalf of auction purchasers and the first respondent's
     duty as "Court Commissioner" had ceased to exist on 13.11.2006. After
     13.11.2006 or at least after 24.07.2008 (Order ofDRT), for the services
     ofrespondent No. 1, if any, were availed by the auction purchasers, only
D    the auction purchasers are liable to pay the said charges to respondent
     No. 1. The appellant Bank, therefore, was under no obligation to pay the
     charges to the first respondent in any case after 24.07.2008. The High
     Court has not kept in view the order of DRT dated 24.07 .2008 and the
     order of the Recovery Officer dated 25.03.2009. The High Court was
     not right in saying that DRT had no jurisdiction to entertain the appeal
E    and, therefore, the order dateq 24.07.2008 would be non est.
          11. After the above order of the Recovery Officer, respondent
  No. 1 filed MA No. 35 of 2009 before DRT seeking payment of charges
  for security services from the auction purchasers as directed by DRT in
  its order dated 24.07.2008 which clearly indicates that the first respondent
F had accepted the said order of DRT and also acted upon it. Be it noted,
  the proceedings of the Recovery Officer dated 25.03.2009 in which all
  the parties participated proceeded mainly on the basis of the order of
  DRT dated 24.07.2008. But, strangely, respondent No. 1 made submission
  before the High Court that " .... DRT had no jurisdiction to entertain
G Appeal No. 2512007 against the order of the Recovery Officer dated
  12.06.2007........ ". The said submission of respondent No. 1 was
  accepted by the High Court and it was held that " ......... DRT had no
  jurisdiction to entertain Appeal No. 2512007, the order dated
  24.07.2008 passed by it ...... would be non est and hence must be
  ignored." In our view, the High Court did not keep in view that the
H
  BANK OF INDIA v. YADAV CONSULTANCY SERVICES (P)                                 77
          LTD. AND ANR. [R. BANUMATHI, J.]

respondent No. 1 had not challenged the order ofDRT dated 24.07 .2008;            A
and had acquiesced to the said order dated 24.07.2008 and also acted
upoq it. As discussed earlier, the subsequent proceedings clearly show
that respondent No. 1 and other parties have accepted the order of DRT
dated 24.07.2008 and acted upon it. The findings of the High Court that
DRT had no jurisdiction to entertain the appe~l against the order of              B
Recovery Officer cannot be sustained.
       12. Next question falling for consideration is whether in the facts
of this case, the Micro, Small and Medium Enterprises Development
Act, 2006 would apply. As discussed earlier, the proceedings were
conducted before DRTunder RDDBFIAct, 1993 which finally culminated
in DRT's order dated 24.07 .2008 and had become final and binding and             C
was also accepted and acted upon by respondent No. l. As per Section
5 of the RDDBFI Act, the Debt Recovery Tribunal is headed by the
Presiding Officer who is or has been or is qualified to be a District
Judge. Likewise, as per Section 10 of the said Act, the Appellate Tribunal
is headed by the Chairperson who is or has been or is qualified to be a           D
judge of a High Court. DRT and DRAT are not merely having the
trappings of the courts but also vested with the powers of ordinary civil
court including the power to summon and examine the witnesses on
oath, the power to order inspection of the documents etc. When the
proceedings were lawfully conducted before the quasi-judicial authorities
like DRT and DRAT, having trappings of the civil court, MSMEDF Council            E
had no jurisdiction to entertain the application filed by the first respondent;
more so, when the orders passed by the DRT were accepted and acted
upon by respondent No. l. The High Court did not consider the question
oflack of jurisdiction ofMSMEDF Council.
      13. The High Court mainly seems to have proceeded with the                  F
matter as if it is a regular appeal arising out of the award passed by the
MSMEDF Council ahd commenting upon the conduct of the Bank in not
seriously pursuing the matter in challenging the award,. The High Court
did not consider the earlier proceedings before ORT, DRAT and before
the High Court except merely referring to certain proceedings before              a
ORT and DRAT. The High Court did not consider various orders passed
by ORT and DRAT and the conduct of the parties who have been
vigorously pursuing the matter before ORT, Recovery Officer and DRAT.
The High Court also did not keep in view that the parties were bound by
the earlier orders passed by ORT and Recovery Officer which clearly
                                                                                  H
78                SUPREME COURT REPORTS                      [2017] 12 S.C.R.


A    held that charges towards security services are payable only by the
     auction purchasers. The impugned order passed by the High Court thus
     suffers from serious infirmity and is liable to be set aside.
            14. Pursuant to the order dated 19.03.2013 passed by the High
     Court, an amount of Rs. J,93,22,590/- was deposited by the appeJlant
B    Bank. By an order dated 30.03.2016 passed by DRT, Pune, respondent
     No. I has withdrawn an amount of Rs.1,22,00,000/- (Rs. l ,00,00,000/-
     plus accrued interest). The balance amount ofRs.93,22,590/- is lying in
     deposit with the District Court, Pune. By order dated 22.04.2016, this
     Court has granted interim stay of the impugned order of the High Court.
     However, by order dated 24.10.2016, respondent No. I was permitted to
c    withdraw 50% of the said amount Rs.93,22,590/- on furnishing a bank
     guarantee. The first respondent has not withdrawn the said 50% amount
     of Rs.93,22,590/- as he has failed to furnish bank guarantee. We have
     set aside the impugned judgment of the High Court and resultantly the
     award passed by the MSMEDF Council is also set aside.
D           15. The impugned order is set aside and this appeal is allowed.
     The appellant Bank is free to recover the amount of Rs.1,22,00,000/-
     withdrawn by the first respondent after adjusting the payments due upto
     24.07 .2008. The bank is permitted to withdraw the amount of
     Rs.93,22,5 JOI- along with accrued interest. So far as the charges towards
E    security services payable to the first respondent after 24.07 .2008, liberty
     is granted to the first respondent to proceed against the auction
     purchasers-respondents No. 2 and 3 in accordance with law. No order
     as to costs.


     Nidhi Jain                                                    Appeal allowed.