:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3 OF 2009 WRIT PETITION NO.3 OF 2009 WRIT PETITION NO.3 OF 2009 M/s.Soma Papers & Industries Ltd.. Petitioner Vs Bank of India & Ors. .. Respondents Mr Karl Tamboli i/b Mr O.P.Pandya, for the petitioner. Mr Rafigue Peermoideen a/w Mr S.S.Ghosh i/b M/s Paras Kuhad & Associates for respondent no.1. Mr Vineet Naik a/w Mr Darshan i/b Mehta Dhrve Liladhar & Co for respondent no.6. CORAM : S.B.MHASE & CORAM : S.B.MHASE & CORAM : S.B.MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE : 06.01.2009. DATE : 06.01.2009. DATE : 06.01.2009. P.C. P.C. P.C. 1. Heard learned counsel for the parties. 2. The petitioner has approached to this Court challenging the order passed by the Debt Recovery Appellate Tribunal (DRAT) on 16.5.2008. The petition has arisen under the following matrix. . The petitioner is an original debtor and the proceedings under the Securitization Act were started in the DRT by filing a Securitization Application No.17 of 2007. The DRT passed a decree in favour of the respondents. The said decree passed in :2: :2: :2: Application No.17 of 2007 was challenged by the petitioner by filing securitization appeal, being Misc.Appeal No.79 of 2008. Along with the said Appeal, the petitioner filed Misc.Application No.330 of 2008 and prayed for exemption to deposit the decretal amount so that the appeal can be entertained by the DRAT. The DRAT allowed Misc.Application No.330 of 2008 on certain conditions by the order dated 17.4.2008 and the petitioner was directed to deposit certain amount by the order dated 17.4.2008 passed in Misc.Application No.330 of 2008. The petitioner was aggrieved by the order dated 17.4.2008 passed in Misc.Application No.330 of 2008 and, therefore, the petitioner challenged the said order by filing a Writ Petition No.3512 of 2008 before this court. The said petition was disposed of by this Court on 4.6.2008. While Writ Petition No.3512 of 2008 was pending before this Court, the DRAT passed the impugned order dated 16.5.2008. By this order, the DRAT observed that the petitioner has not complied with the order passed on 17.4.2008, directing the petitioner to deposit certain amount so as to entertain the appeal and, therefore the DRAT observed that the appeal does not survive and disposed of the appeal. :3: :3: :3: 3. The order dated 16.5.2008 disposing of Misc.Appeal No.79 of 2008 passed by the DRAT was not brought to the notice of this Court when this Court disposed of Writ Petition No.3512 of 2008 on 4.6.2008. Therefore, the writ petition was disposed of by this Court assuming that Misc.Appeal No.79 of 2008 is pending before the DRAT. 4. It is to be noted that Writ Petition No.3512 of 2008 was directed against an order dated 17.4.2008 passed in Misc.Application No.330 of 2008 in Misc.Appeal No.79 of 2008 and thereby the petitioner was claiming exemption from deposit of the decreetal amount, which was a pre-condition for entertaining the appeal by the DRAT. The petitioner raised before this Court a ground that the property of the petitioner has been put to auction and out of the auction money, the decreetal amount has been deposited with the respondent-Bank and, therefore, the petitioner claimed that it is not necessary to deposit any amount for getting an exemption. However, this Court found that the ground raised by the petitioner was not raised before the DRAT and, more specifically, in Misc.Application No.330 of 2008 and, therefore, this Court did not allow the petitioner to agitate the said ground for the first :4: :4: :4: time in Writ Petition No.3512 of 2008 and accordingly observations were made by this Court while disposing of the said writ petition. 5. In view of the above observations made by this Court while disposing of the writ petition, the petitioner decided to prefer another Misc.Application raising the said ground in the exemption application before the DRAT. However, the petitioner found that the appeal has been disposed of by the order dated 16.5.2008 (impugned order) for non-compliance of the order passed by the DRAT on 17.4.2008. Under these circumstances, therefore, the petitioner preferred two applications before the DRAT. Vide Misc.Application No.801 of 2008 the petitioner claims restoration of Misc.Appeal No.79 of 2008 in Securitization Application No.17 of 2007. Another Application No.606 of 2008 was preferred for granting an exemption in preferring the appeal raising the ground which was not considered by the Division Bench in Writ Petition No.3512 of 2008, being raised for the first time before the Division Bench. 6. While these two applications were pending before the DRAT, the present petition has been filed by the petitioner challenging the order dated :5: :5: :5: 16.5.2008 dismissing the appeal for noncompliance of the order dated 17.4.2008. 7. We have realised that simultaneously the petitioner cannot approach both the courts for the similar relief, namely, to set aside the order dated 16.5.2008 and to restore Misc.Appeal No.79 of 2008. When this was pointed out to the learned counsel for the petitioner, he has submitted and undertaken that the restoration application, which is pending before the DRAT, will not be pressed and will be withdrawn, provided his grievance is considered in the present writ petition. In view of the undertaking given by the petitioner that he is withdrawing the restoration application, we have decided to consider the grievance of the petitioner for restoration in the present writ petition. 8. What we have noticed from the above referred facts is that the order dated 16.5.2008 disposing of the appeal for noncompliance of the order passed by the DRAT on 17.4.2008 has been passed when the writ petition against the order dated 17.4.2008 was pending before this court. This Court has decided the writ petition on 4.6.2008. But we find that when this Court was considering the validity and legality :6: :6: :6: of the order dated 17.4.2008 passed by the DRAT, it was improper on the part of the DRAT to dispose of the appeal holding that the said order is not complied with and, therefore the appeal does not survive. This mistake the DRAT may have committed because the fact that the writ petition as against the order dated 17.4.2008 is pending before this Court, must not have been brought to the notice of the DRAT. But we find that the DRAT has disposed of the said appeal without ascertaining as to whether the order dated 17.4.2008 has attained finality, either as a result of the acquiescence of the said order by the petitioner and/or disposal of the writ petition preferred against the said order. But without verifying this aspect, the order dated 16.5.2008 has been passed. We find that this technical order, sometimes, result into denial of justice to the parties and unnecessarily creates technical problem which, ultimately, affects substantial justice and, therefore, we hope that while passing such order it is better that the DRAT should have been cautious enough to ascertain as to whether the said order dated 17.4.2008 has attained the finality either by acquiescence of the said order by the petitioner and/or nonpendency of any proceedings as against the said order. Let the fact :7: :7: :7: as it is. But we find that the interest of justice requires that the said order dated 16.5.2008 be set aside and we, accordingly, set aside the said order and restore Misc.Appeal No.79 of 2008 pending before the DRAT. Apart from the reasons which we have stated for setting aside the order, we find that both the learned counsel for the respondents were fair enough to concede for the restoration of Misc.Appeal No.79 of 2008. The said concession is also a ground for restoration. 9. We, therefore, dispose of the petition by passing the following order:- . The order dated 16.5.2008 passed by the DRAT in Misc.Application No.330 of 2008 in Misc.Appeal No.79 of 2008 is hereby quashed and set aside and the said Appeal is restored to its original file. (We clarify that except an order of dismissal for noncompliance, the earlier order passed in Misc. Application No.330 of 2008 whereby the petitioner was directed to deposit certain amount, was actually confirmed by disposal of Writ Petition No.3512 of 2008 and that portion of the order is not disturbed by this order). We further direct that Misc.Application No.606 of 2008 claiming exemption or :8: :8: :8: waiver of deposit to file an appeal shall be heard by the DRAT on its own merit after hearing all the interested parties. The said application shall be disposed of within a period of one month from the date of the receipt of this order. All contentions of the interested parties are kept open to be argued before the DRAT. In view of the statement made by the learned counsel for the petitioner withdrawing Misc.Application No.801 of 2008 pending before the DRAT, the said application stands disposed of as withdrawn and the petitioner shall file an appropriate memo before the DRAT to that effect. . The Writ Petition accordingly stands disposed of. (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.) (S.B.MHASE, J.) (S.B.MHASE, J.)