IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8309 of 2009 1. INDUSTRIAL CORPORATION PVT.LTD, through its Chairman Viren Pande, son of late Ram Nath Pande, Factory-Bihar Sugar Works at Pachrukhi, police station Pachrukhi, District Siwan 2. Viren Pande, son of late Ram Nath Pande, resident of Pachrukhi, police station Pachrukhi, District Siwan at present, B-60, South Extension Part-II, New Delhi-110049 Versus 1. THE UNION OF INDIA through the Secretary, Ministry of Finance (Banking Division) North Block, New Delhi 2. The Chairman, Central Bank of India, having its head office at Chandramukhi, Nariman Point, Mumbai-400021 3. The Zonal Manager, Central Bank of India, Bhagwanpur Chowk, Pawapuri Muzaffarpur 4. The Branch Manager, Central Bank of India, Siwan Branch, Siwan 5. The Branch Manager, Central Bank of India, Chapra Branch, Chapra 6. Mr. Naresh Kumar, Recovery Officer, Debt Recovery Tribunal, 396, East Boring Canal Road, Patna 7. Mr. Amar Kumar Agrawal, S/o Sajjan Kumar Agrawal R/o 202, B- Block, Hariom Apartment, Exhibition Road, Patna 8. Mr. Ravi Poddar C/o Mr. Amar Kumar Agrawal, S/o Sajjan Kumar Agrawal R/o 202, B-Block, Hariom Apartment, Exhibition Road, Patna ----------- For the petitioner: Mr. K. N. Choubey, Sr. Advocate Mr. Ambuj Nayan Choubey, advocate For the respondents: Mr. Umesh Prasad Singh, Sr. Advocate ------------------ 6 16-09-2009 Heard the parties. This writ petition was earlier considered by a learned Single Judge of this court. He noticed that another writ petition filed by the present petitioner bearing CWJC no. 2370/03 challenging the legality of 2 recovery proceeding no. 80/2000 pending before Debt Recovery Tribunal, Patna was allowed by order dated 22-6-2004. But that judgement and order passed in the writ petition was challenged through LPA nos. 773 and 783 of 2004 and the Division Bench hearing the Letters Patent Appeals at the stage of admission first granted ex- parte stay of the order of the learned Single Judge on 16-8-04 and subsequently after hearing the parties, the appeals were admitted for hearing on 1-7-08 and the interim order of stay of the judgement in that writ case is still continuing. In view of aforesaid facts, the learned Single Judge deemed it proper to refer the matter to a Division Bench to consider the grievance of the petitioner against the impugned order dated 5-6- 2009 contained in annexure-14 whereby the Recovery Officer has considered the report of learned Receiver and has issued certain directions in the light of said report and in that proceeding he has also withdrawn the order passed by him on 28-5-2009 which has been annexed as annexure-13. The main grievance of the petitioner is that 3 order dated 28-5-09 had been passed on a petition filed by the writ petitioner on 15-5-09 and the next date fixed for disposal of the petition was 30-6-09 but instead of waiting to hear the matter on that date, the Recovery Officer, according to learned counsel for the petitioner, preponed the hearing of the matter without notice to the petitioner leading to impugned order dated 5-6-2009. On going through the order contained in annexure-13 it is found that the Recovery Officer took notice of several informations of theft allegedly committed against materials purchased by the auction purchaser and also noticing the report that the local M.L.A had locked the main gate of the Pachrukhi Sugar Mill which prevented the auction purchaser from lifting the movable items of the Certificate Debtor Company (the writ petitioner herein) in absence of the Receiver. In view of these facts, the Recovery Officer directed the Receiver to file compliance report immediately on or before January, 5, 2009 disclosing the relevant facts on the lifting of the movable items by the auction purchaser. Thereafter, further direction was issued that the process 4 of lifting the items is stopped immediately till the disposal of the petition filed by the Certificate Debtor Company (writ petitioner herein) on 15-5-2009. Notice was also ordered to be issued against the local M.L.A for obstructing the recovery proceeding. The impugned order dated 5-6-2009 shows that the Receiver, as directed, filed his report before 5-6-09 and that fell for consideration before the Recovery Officer. On going through the facts disclosed by the Receiver and after appreciating the significance of the order of the Division Bench of this court staying the judgement of the writ court, the Recovery Officer again directed the auction purchaser to lift the movable items as per auction held by the Tribunal on 23-11-2001. This was ordered to be done in the presence of the learned Receiver on Supardari. The District Magistrate and Superintendent of Police, Siwan were directed to render all the possible assistance to the learned Receiver and agent of auction purchaser for compliance of that order. In view of such order necessitated by the report of Receiver, the Recovery Officer has further recorded that 5 the order dated 28-5-2009 is withdrawn and the petition of the Certificate Debtor Company filed on 15-5-2009 is disposed of on merit. The main issue falling before this court is whether the impugned order must be interfered with on account of undisputed fact that the order was passed without notice and without hearing the writ petitioner, that is, Certificate Debtor Company. Learned counsel for the petitioner tried to persuade us to take a view that although the order of the writ court has been stayed by the Division Bench and the appeals are pending for hearing, we should hold that the recovery proceeding cannot proceed and in view of the pendency of the matter at the stage of appeal the Recovery Officer should stay its hands, which appears to be the purpose of filing petition dated 15-5-2009. We are not impressed by that submission. This aspect of the controversy had to be placed before the Division Bench which granted the stay order after hearing the parties at the stage of admitting the appeals. Any further clarification etc. had to be obtained in those appeals. 6 It does not require any deep analysis of the facts to come to a conclusion that the writ petitioner which is the Certificate Debtor Company and has lost the suit at all stages wants to avoid a compromise decree and delay the execution proceeding pending before the Recovery Officer on grounds which may or may not be available to it under law. The execution proceeding, was started by the Debt Recovery Tribunal sometimes in the year 1999 or 2000 and thereafter the Tribunal passed recovery order pursuant to which auction of movable items were held on 23-11-01. The recovery proceeding no. 80/2000 has remained pending for about nine years. It is the duty of the Recovery Officer to make all efforts for expeditious execution of the decree by process of effecting recovery of the required amount. Of course, Certificate Debtor Company can participate in the proceedings but any attempt to prolong the recovery proceeding unnecessarily requires to be handled carefully. In the facts of the case, we find that the petition of the writ petitioner, Certificate Debtor 7 Company, filed before the Recovery Officer on 15-5-2009 has been disposed of on merits without hearing the petitioner. In that view of the matter, we do not want to go into the merits of the matter and deem it proper to remit the matter back to the Tribunal/Recovery Officer with a direction that petition dated 15-5-09 will be reconsidered on merits within one week of production/communication of a copy of this order before the Recovery Officer. The parties are directed to appear before the Recovery Officer, preferably with a copy of this order, on or by 9-10-2009. The Recovery Officer shall hear the matter on 9-10-2009 or on any subsequent date but within one week there from. Till 16th October, 09 if the petition is not heard on merits due to non co- operation of the writ petitioner then the said petition will be treated to have been dismissed for non- prosecution. It is made clear that any observation made in this order shall not prejudice the parties in consideration of the petition dated 15-5-2009 on its merits. The Recovery Officer will make all attempts to recover the entire dues with some urgency so that this 8 old recovery (execution) matter arising out of a compromise decree may come to rest without further delay. BKS/- (Shiva Kirti Singh, J.) (Jyoti Saran, J.)