srk １ wp-L-811-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 811 OF 2010 M/s. Hanil Era Textiles Ltd. ... Petitioner Versus HDFC Bank Ltd. ... Respondent Mr. M.M. Vashi with Mr. Santosh Narwade i/by M/s. M.P. Vashi Associates for the petitioner. Mr. Rohit Kapadia, senior advocate with Mr. Zubin Behramkamdin, Mr. Mihir Mody, Mr. Kersi Dastoor and Mr. Rajesh Talekar i/by M/s. K. Ashar & Co. for the respondent. CORAM : MOHIT S. SHAH, C.J. & S.C. DHARMADHIKARI, J. Monday, July 26, 2010 P .C. By this writ petition under Article 226 of the Constitution of India, the petitioner is challenging the order passed by the Debts Recovery Appellate Tribunal dated 9th December, 2009 in Misc. Appeal No.793 of 2009. 2. This appeal was filed by the petitioner to challenge an interim order of Debts Recovery Tribunal in original application No.49 of 2009. This original application is filed by the first respondent-bank against the petitioner for recovery of a sum of Rs.7,28,99,995/- together with interest and for enforcement of the securities. 3. An application was made by the respondent-bank invoking the powers of the Debts Recovery Tribunal to pass interim orders during the srk ２ wp-L-811-10 pendency of the original application. The apprehension of the respondent was that considering the enormity of the claim and financial position of the petitioner, the claim of the bank deserves to be protected by interim orders. It was stated that the liability of the petitioner to the respondent is absolute, the transactions are admitted and legally binding but the payments have not been made despite the liability being admitted. Therefore, there is an apprehension that the petitioner will defeat the rights, claims or the ultimate orders and decrees passed in favour of the respondent. It was highlighted that the petitioner has a financial liability and it does not intend to pay the legitimate dues of the bank. In such circumstances, the interim orders as prayed be granted. 4. A reply affidavit was filed by the petitioner controverting these statements and pointing out that the claim of the bank is yet to be adjudicated. In such circumstances, the interim orders as prayed should not be granted. The Debts Recovery Tribunal heard both sides and passed an interim order in the following terms: "A) The Defendant is hereby restrained until further orders from further creating charge, transferring right or further dealing with leasehold rights in property referred to in Para No.2. B) The parties shall bear their costs." 5. Aggrieved by this order, the petitioner carried the matter in appeal before the Debts Recovery Appellate Tribunal and the said order has been confirmed by the said appellate tribunal. It is against these orders that the instant writ petition under Article 226 of the Constitution of India has been filed. srk ３ wp-L-811-10 6. Mr. Vashi, learned counsel appearing for the petitioner submitted that the learned Presiding Officer and the learned Chairperson of the Appellate Tribunal overlooked the fact that what the respondent is invoking, is a power of the Tribunal under section 19(13) of the Debts Recovery Act, 1993. That is akin to the power of Civil Court under Order XXXVIII of Civil Procedure Code and particularly Rule 5 thereof, viz. Attachment before judgment. The ingredients that are required to be set out and the requirement for the court to be satisfied for passing an order of attachment before judgment are distinct and ought not be equated with a power to grant injunction as contemplated by section 19(12) of the said Act. In these circumstances, the impugned order suffers from apparent errors and, therefore, deserve to be quashed and set aside. Alternatively, Mr. Vashi submits that the petitioner also had dealings and transactions with other bankers. To secure the claim of these banks, the petitioner has created charges over its properties. These charges have to be renewed and for that purpose certain documents are required to be executed from time to time. The order as made by the Presiding Officer and confirmed by the Debts Recovery Appellate Tribunal will be an impediment in meeting with the past transactions and commitments of the petitioner towards these bankers. The petitioner will, therefore, be unable to fulfill the commitment in view of the order of injunction granted by the Tribunal. In these circumstances and when the section does not permit the Court or the Tribunal to pass any order with such sweeping directions, then, the impugned order is even otherwise vitiated and should be set aside. 7. Mr. Kapadia, learned senior counsel appearing on behalf of the respondent supported the orders and submitted that considering the claim of the bank and the necessary averments in the application for interim relief, the Tribunal was justified in passing this order. The submissions now made were srk ４ wp-L-811-10 never raised before the courts below and when the order is interim in nature, then, the court should not exercise its extraordinary, equitable and discretionary jurisdiction and interfere with the same. Shri Kapadia also points out that sections 19(12) and section 19(13) cover a distinct area and field and, therefore, what has been invoked in this case is the power of the Tribunal under section 19(12) of the Act and, therefore, having satisfied itself that the petitioner should be restrained from transferring, alienating or otherwise dealing with, or disposing of any property and assets belonging to it, the order of injunction is traceable to this provision and there is no infirmity or error in the same, requiring this court's interference. For all these reasons, he submits that petition should be dismissed. 8. With the assistance of the learned counsel for the parties, we perused the orders and the application on which the said orders are passed. We are satisfied that in this case, the respondent has invoked jurisdiction of the Tribunal under section 19(12) of the DRT Act and which enables the Tribunal to make interim order against the defendant before it and debar him from transferring, alienating or otherwise dealing with or disposing of any property and assets belonging to him without prior permission of the Tribunal. The application as made if perused as a whole, leaves us in no manner of doubt that this power has been invoked in the facts of the present case. Therefore, the Tribunal, on being satisfied that prima facie there is transaction between the parties, that certain liabilities are incurred and that sums are outstanding and payable, made an interim order protecting the claim by debarring the petitioner from transferring or disposing of the properties. Further, we have no doubt in our mind that the order made on 6th August, 2009 will not affect the past transactions of the petitioner with other bankers. The completed transactions such as charges created would not be adversely affected as is clear from the wording of the order itself. Therefore, if any further documents in relation srk ５ wp-L-811-10 thereto are required to be executed hereafter that would not prevent the petitioner from approaching the Tribunal and seek an appropriate modification so as to enable it to forward or furnish the documents and particulars in that behalf. 9. In these circumstances, if an appropriate application is made, we have no doubt that the Tribunal will consider it and pass appropriate orders after hearing both sides and in accordance with law. Presently, the injunction order as passed does not adversely affect the petitioner and it is based on prima facie satisfaction of the Tribunal which is confirmed by the Chairperson of the Appellate Tribunal. The order is interlocutory in nature and does not suffer from any error apparent or perversity requiring interference in writ jurisdiction. Petition is, therefore, dismissed. CHIEF JUSTICE S.C. DHARMADHIKARI, J.