The main legal point established in the judgment is that the sale conducted by the Recovery Officer does not stand vitiated due to the absence of leave of the Court appointing the Receiver, as the Joint Receivers were not in actual physical possession of the suit premises at the time of the institution of the proceedings.

DEBANGSU BASAK, J.

1. The petitioner has assailed an Order dated April 28, 2017 passed by the Chairman, Debts Recovery Appellate Tribunal in Appeal No. 66 of 2017.

2. Learned Advocate for the petitioner has submitted that, the petitioner is the assignee of the residue of the unexpired period of the leasehold interest in terms of a lease deed dated September 12, 1975 in respect of premises No. 14, A.K.M Siddique Lane (formerly Wellesley Lane), Kolkata-700016. The petitioner had filed a suit being C.S No. 97 of 1992 before this Hon'ble Court, inter alia, for recovery of possession. The third respondent is a party defendant in such suit. A Receiver was appointed in such suit. By an Order dated April 1, 1992, Joint Receivers were appointed by the Hon'ble High Court for taking actual physical possession of the suit property. In terms of such Order dated April 1, 1992, the Joint Receivers had visited the suit premises and had taken possession thereof on April 2, 1992. The Joint Receivers had put wooden board in the premises indicating that, the Joint Receivers are in constructive possession of the suit premises. He has referred to the Order dated April 1, 1992 and the minutes of the meeting of the Joint Receivers subsequent thereto, in support of his contentions that, the Joint Receivers are in possession of the suit premises. He has submitted that, the suit is still pending. The appointment of the Joint Receivers have not been withdrawn or vacated. The suit premise is, therefore, custodia legis. The third respondent is aware of such possession by the Joint Receivers. Notwithstanding the suit property being custodia legis, the third respondent by suppressing such fact and without obtaining the leave of the Court appointing the Joint Receivers, had filed a proceeding under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. The petitioner upon coming to know of such proceedings, had filed an application before the Recovery Officer. By the time, the petitioner could apply before the Recovery Officer, the proceedings under Section 19 of the Act of 1993 had culminated into a certificate and execution proceeding for the purpose of recovery of certificate amount had been initiated. In such recovery proceedings, the suit property was put up for sale and sold by the Recovery Officer. The sale by the Recovery Officer is bad on the ground of the breach of the principles of custodia legis. The sale is illegal, null and void. He has submitted that, the issue of custodia legis raised by the petitioner in the application before the Recovery Officer was not dealt with. The Recovery Officer had disposed of the application by an Order dated September 3, 2015. The order of the Recovery Officer was appealed against. Such appeal was dismissed by the Presiding Officer by its Order dated October 8, 2015. The appeal carried against the order of the Presiding Officer was dismissed by the impugned Order dated April 28, 2017 passed by the Debts Recovery Appellate Tribunal. In none of the three stages of the proceedings did any of the authority consider and decide upon the point of custodia legis raised by the petitioner.

3. In support of the contention that, the proceedings initiated by the bank before the Debts Recovery Tribunal under Section 19 of the Act of 1993 and all orders passed therein dealing with the suit property including the order of sale in respect thereof are illegal, null and void, learned Advocate for the petitioner has relied upon 1959 Volume 1 SCR page 333 (Kanhaiyalal v. D.R Banaji). He has submitted that, the impugned order should be set aside. The order of sale of the suit property in the proceedings under Section 19 of the Act of 1993 be declared null and void.

4. Learned Senior Advocate appearing for the third respondent has questioned the maintainability of the writ petition. He has submitted relying upon (2015) 5 SCC 423 (Radhey Shyam v. Chhabinath) and (2015) 9 SCC 1 (Jogendrasinhji Vijaysi