812wp4385.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4385 of 2009 (Bank of India vs. Hon’ble Chairperson, Debts Recovery Appellate Tribunal and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha and F. M. Reis, JJ. Date : 08/12/2009. Heard Mr. A. T. Purohit, Adv. for petitioner and Mr.A.S.Jaiswal, Adv. for respondents. This Writ Petition is directed against the order dated 7th September, 2009 as well as 6th September, 2009 passed by the Debts Recovery Appellate Tribunal, Mumbai. Counsel for petitioner has submitted that, by these orders, though the petitioner is entitled to proceed with the auction of six properties of the petitioner in order to recover the entire outstanding dues which is due and payable by the respondent; however, the Debts Recovery Appellate Tribunal, without any authority of law, did not permit the bank to auction the residential house of petitioner, which is mortgaged to the bank along with other five properties and permitted the respondent to hold the said residential house on 812wp4385.09.odt 2 . behalf of respondent/bank till further orders. Counsel for petitioner has submitted that release of the residential house by the Debts Recovery Appellate Tribunal is without any authority of law and therefore, the impugned orders are unsustainable in law. The petitioner/bank has every right to recover the dues of the bank by auctioning all the properties belonging to the petitioner including the residential house. Mr. A.S.Jaiswal, Adv. for respondents has submitted that the respondents are not opposing auction of the properties undertaken by the bank. It is contended that if the dues of the bank are satisfied by selling other five properties of the respondent, in that case, it may not be necessary to auction residential house of the respondent and therefore, it is submitted that prayer was made before the Tribunal that the residential house of respondent may be put to auction at the end. Mr.Jaiswal, Adv. has submitted that the bank may be permitted to put other five properties belonging to the respondent to auction first and in case the outstanding dues are not satisfied, then it will open for the bank to put the residential house of the respondent to auction at any point of time. It is further submitted that the respondents concerned are ready and willing to incur all the expenditure which is likely to be incurred for auction of the house and also are ready 812wp4385.09.odt 3 . and willing to deposit the said amount with the bank, as and when demanded by the bank. Considered the rival contentions canvassed by the respective counsel and perused the impugned orders. It is well settled that the bank is entitled to recover the amount which is due and payable, in accordance with law and procedure applicable in this regard, by auctioning the property of the borrower. Which property is to be auctioned first and which is to be auctioned later is the option of the bank. However, from the humanitarian point of view, if the outstanding amount is satisfied by auctioning the property other than residential house, in such a situation, there is no reason why such recourse should not be taken and therefore, we dispose of the petition by staying the effect and operation of the impugned orders dt. 7.9.2009 and 6.10.2009 till the Review Petition No.06 of 2009 is decided by the Tribunal. The respondent/bank is entitled to auction five properties of the respondent first except the residential house and if the outstanding liability including interest etc. is not satisfied from the consideration received by the bank by auctioning said properties, in that event, the bank is entitled to auction the residential house also. The expenditure which will be incurred for auctioning the residential house shall be borne by the respondents and the 812wp4385.09.odt 4 . amount in this regard shall be deposited by the respondents well in advance in the bank. With these observations and directions, the petition is disposed of. JUDGE JUDGE jais