R. D. Khare, Chairperson
1. The present application has been filed by the respondent No. 5-Auction purchaser for recalling the order dated 19.11.2020, by which the appeal was disposed off as having been withdrawn by the appellant, who is respondent No. 4 in the present recall application.
2. The brief facts of the case are that the main appeal was filed by the appellant against the order dated 18.02.2020, by which the S.A. No. 382/2019-Shah Mohammad Vs.Authorized Officer, Bank of Baroda and Ors. was disposed off by the Tribunal below holding that the SA applicant has no locus to challenge the proceedings of the Bank.
3. It appears that after filing of the present appeal, the notices were issued to the respondents and accordingly, the respondent-Bank appeared through its counsel Shri Maneesh Mehrotra, who had informed this Tribunal on 28.02.2020 that the property has been auctioned on 14.02.2020, therefore, the appellant was directed to implead him as respondent No. 5 and to file amended cause title and notice was also directed to be served upon him. Accordingly, the amended cause title was filed by the appellant on 02.03.2020 and notices were also served on the newly added respondent. Despite service of notice, none had appeared on behalf of the respondent No. 5-Auction purchaser till 19.11.2020. On 19.11.2020 on being mentioned, the main appeal was taken up for consideration. On the said date, the learned counsel for the appellant had submitted before this Tribunal that the matter has been settled between the Bank and the borrower, therefore, the appellant intended to withdraw the appeal, for which the respondent-Bank had no objection, hence the appeal was disposed as withdrawn as prayed by the learned counsel for the parties vide order dated 19.11.2020 of this Tribunal, against which the respondent No. 5-auction purchaser has filed the present recall application.
4. Learned counsel for the applicant (respondent No.5-auction purchaser) submitted that he had purchased the property in auction held by the respondent-Bank and deposited 25% of the bid amount with the respondent-Bank. The learned counsel for the applicant further submitted that he was not made party in the appeal before this Tribunal and subsequently on an application he was made party and the date fixed for reply, but before the said date, the respondent No. 4 and the Bank had entered into a compromise and on the basis of the said compromise, the appeal was disposed off as withdrawn. It was also contended that behind back of the auction purchaser, the compromise took place between the borrower and the Bank, result of which is that the right of the applicant was adversely affected and status of the order impugned passed by the Tribunal below on 18.02.2020 has been changed, which is not permitted under the law.
5. Learned counsel for the applicant also submits that once the property has been auctioned and 25% of the auction amount has been deposited, the right of the auction purchaser has accrued upon the property and in such manner, his right cannot be adversely affected. It was therefore, prayed that the order dated 19.11.2020, by which the appeal was disposed off as withdrawn, may be recalled and the appeal may be restored to its original number so that justice may be done with the applicant-auction purchaser.
6. Learned counsel for the appellant submits that appellant-Borrower is a master of suit and nobody can force him to contest the case against his will. If the applicant is aggrieved by the withdrawal of the appeal, he may file separate S.A. before the Tribunal below raising all the grievances against the Bank. Hence, the recall application filed by the applicant is not maintainable and the same deserves dismissal.
7. Learned counsel for the respondent-Bank has supported the contention of the learned counsel for the appellant.
8. Heard the learned counsels for the parties and considered the material available on record.
9. It is admitted by the Respondent-Bank that the property in question has already been auctioned on 14.02.2020 in favour of the recall applicant on 14.02.2020 and 25% of the bid amount was deposited and sale was confirmed and right of the recall-applicant has accrued in the property in question.
10. This is to be seen that all the proceedings initiated by the respondent-Bank under the SARFAESI Act were challenged by the appellant being father of Abdul Kamal Nasir, who is respondent No. 4, by filing The S.A. No. 382/2019 before the Tribunal below. Respondent No. 4 constituted a propriatorship firm namely M/s Lucky Rice Mill and availed credit facilities from the respondent-Bank. In order to secure the said loan, the respondent No. 4 on the basis of registered power attorney dated 21.12.2009, which was executed by the appellant in favour of the said respondent, created equitable mortgage in favour of the Bank. The Tribunal below vide order which is under challenge in the present appeal, dismissed the S.A. of the appellant holding that the appellant has no locus to challenge the action of the respondent-Bank initiated under the provisions of the SARFAESI Act, as he is neither borrower nor guarantor/mortgager of the property in question and has further held that the appellant had already relinquished his right over the secured asset by executing registered power of attorney dated 21.12.2009 in favour of the respondent No. 4, who is son of the appellant and borrower of the respondent-Bank.
11. In view of the above facts, it is clear that the present appeal has been filed by a third person and the matter has been compromised between the respondent-Bank and the respondent No. 4-borrower, therefore, the appellant being a third party cannot be forced to contest the case for the benefit of the applicant (auction purchaser), as it has already been decided by the Tribunal below that he has already relinquished his right over the property in question by executing the registered power of the attorney dated 21.12.2009. It is to be noted that the power of attorney given by the appellant was never invoked and further by settlement, the property has gone to the son of the appellant. The Tribunal below has rightly held that the appellant has relinquished his right after giving his power of attorney. If the recall-applicant had any grievance against the compromise/settlement between the Bank and the borrower, he ought to have filed the S.A. before the Tribunal below raising all his grievances, but he did not do so rather he is seeking his relief in the appeal filed by a third party, which is not permissible under the law. It is also settled proposition of law that the appellant is master of his suit and he is free either to contest his cause or not to contest his cause. Hence, the prayer of the recall-applicant for recalling the order dated 19.11.2020, by which the appeal was disposed off as having been withdrawn, is rejected.
12. Accordingly the M.A. No. 01/2021 filed by the applicant (Auction Purchaser) stands rejected with no order as to costs.
