J.M. Malik, Chairperson—By order dated 7.1.2008, the learned Recovery Officer, DRT-I, Delhi came to the conclusion that the appellant had failed to prove his case and ordered him to deposit an amount of Rs.15,30,000 (admitted by him) within 15 days with Certificate Holder bank, otherwise he would be liable for action contemplated under Sections 73 and 74 Second Schedule to the Income Tax Act read with Section 25(b) of the RDDBFI Act.

2. During the first appeal, the learned DRT required the appellant to furnish a bank guarantee for a sum of Rs.15,00,000 in favour of the respondent bank within a week. Subject to this condition, the arrest warrants against the appellants were stayed. Aggrieved by this order, the appellant has approached this Court in the second appeal.

3. According to the appellant, Punjab National Bank had invited tenders for construction of Zonal Training Centre at CBD, Bela Pur, New Mumbai. M/s BOC Properties (P) Ltd. submitted its tender, which was accepted. Mr. Anil Arora, the appellant is one of its directors. Certain disputes arose and the matter was referred to the sole arbitration of Mr. Justice G.C. Jain. An ex parte award was made against M/s. BOC Properties Pvt. Ltd. The said ex parte order was made rule of Court vide order dated 8.4.1999. It is averred that an application under Order 9, Rule 13, CPC by the appellant before the Hon’ble High Court is still pending.

4. A Recovery Certificate as per award was issued. The appellant received a show cause notice under Rule 73 of the Second Schedule to the Income Tax Act, 1961 read with Section 25(b) of the RDDBFI Act, 1993. The appellant moved an application before the Recovery Officer wherein following pleas were made. The property which was attached by the respondent Punjab National Bank was already mortgaged with Canara Bank and, consequently, the said property could not be attached. It was also submitted that the above said amount does not come within the definition of “debt” as defined in the Recovery of Debts Due to Banks and Financial Institutions Act or the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. An appeal was filed against the said order. It was also pleaded that the appellant had deposited Rs.60,00,000 with Canara Bank by selling his own property bearing No.526, Mount Kailash, East of Kailash, New Delhi, which was sold for Rs.35,00,000 and Rs.25,00,000 from his own resources. The appellant has recovered a sum of Rs.59,00,000 from BOG Properties (P) Ltd. The said pleas found no favour with the Recovery Officer and Presiding Officer, DRT.

5. I have heard the counsel for the parties. The learned counsel for the appellant vehemently argued that the appellant has already paid a sum of Rs.60,00,000 to the Company. He explained that the appellant is not liable to pay the above said amount. Lastly, he prayed that in the interest of justice the appeal should be accepted.

6. On the other hand, the learned Counsel for the respondent bank vehemently argued that the appellant had got shops and he was earning rent from the shops. But, when the bank started taking action, the tenants vacated the premises and the bank could not recover any money from the shops.

7. The order sheets pertaining to Recovery Officer reveal that on 8.12.2005 Mr. Anil Kumar, director could not appear before the Recovery Officer as his wife was lying seriously ill. The Recovery Officer directed him to file the affidavit of assets along with balance sheet for the last 15 years, documentary evidence of illness of his wife and travelling expenses to and fro from Mumbai. He was further directed to give the details of transfer, sale, alienation of any property to any person from the date of execution of contract along with IRT of last five years and bank statements of last two years with copies to the counsel for the bank. On 6.1.2006, an affidavit of assets stating therein that in 1997-98 all the records which were in the