When a challenge becomes infructuous, no interim order can be granted and continued.

S. MANIKUMAR, J.

1. As no adverse order is passed against the respondents, notice is waived.

2. M/s. Esjaypee Impex Private Limited, has taken credit facility to an aggregate limit of Rs. 39.50 Crores, from Canara Bank, Chennai. Mrs. Madhubala Parmar, wife of Mr. Mahendra Kumar Parmar, one of the Directors also stood as guarantor and offered a property viz. land and building bearing Old No. 23, New No. 2, Ormes Road, Rajarathinam Street, Kilpauk, Chennai-600 010, as security. There were three other Directors.

3. Borrowers/guarantors defaulted and after classifying the loan as non performing asset. As there was an outstanding amount of Rs. 36,87,68,598.16p, as against the sanctioned limit of Rs. 46 Crores, possession notice dated 19.04.2017 was issued under Section 13(4) of the SARFAESI Act, 2002. Said possession notice came to be challenged in S.A. No. 126 of 2017, on the file of Debts Recovery Tribunal-II, Chennai and vide order dated 20.07.2017, Debts Recovery Tribunal-II, Chennai, granted status quo on condition that the respondents 1 and 2 should pay 20% of the amount due on or before 21.08.2017. Debts Recovery Tribunal-II, Chennai directed S.A. No. 126 of 2017 be called on 22.08.2017, making it clear that extension of time for payment will not be granted.

4. Being aggrieved by the order directing payment, M/s. Esjaypee Impex Private Limited, rep. by its Director Mr. Mahendra Kumar Parmar and Mrs. Madhubala Parmar, respondents 2 and 3 herein filed AIR SA No. 498 of 2017 before the Debts Recovery Appellate Tribunal, Chennai. In I.A. No. 1354 of 2017, respondents and 3 herein, prayed for waiver of pre deposit. Vide order dated 18.12.2017, DRAT, Chennai in I.A. No. 1354 of 2017 in AIR No. 498 of 2017, directed the respondents 2 and 3 to make a pre deposit of Rs. 10 Crores in two instalments. DRAT, Chennai directed I.A. No. 1354 of 2017 to be listed on 16.01.2018 for confirmation. Respondents 2 and 3 failed to make the pre deposit as ordered.

5. In order to realise the outstanding amounts, bank issued the e-auction sale notice dated 20.11.2017 and notices have been served on the respondents 2 and 3 herein and other Directors. The total liability as on 31.10.2017 was Rs. 46,50,54,569/-. E-auction was fixed on 28.12.2017. Being aggrieved by the e-auction notice, respondents 2 and 3 herein, filed S.A. No. 328 of 2017, before the Debts Recovery Tribunal-III, Chennai. Memo Sr. No. 14030 has been filed stating that S.A. No. 126 of 2017, filed against possession notice under Section 13(4) has been withdrawn.

6. Bank has filed a counter affidavit in S.A. No. 328 of 2017. For the failure to make the pre deposit, vide order dated 16.01.2018, Debts Recovery Appellate Tribunal, Chennai dismissed AIR SA No. 498 of 2017. On 10.01.2018, when S.A. No. 328 of 2017 was listed, bank counsel could not appear. On the said date, Debts Recovery Tribunal-III, directed the bank to maintain status quo and posted the matter to 15.02.2018.

7. Setting out the fact that there were no bidders in the auction sale, conducted on 28.12.2017 and thus, S.A. No. 328 of 2017 has become infructuous, bank has filed I.A. No. 38 of 2017, to advance the hearing of S.A. No. 328 of 2017 from 15.02.2018 to an earlier date. On 24.01.2018, in I.A. No. 38 of 2018 in SA No. 328 of 2017, Debts Recovery Tribunal-III, Chennai, has passed the following order.

“This case is taken up for hearing on a mentioning being made by the Ld. Counsel for the petitioner/respondent bank. IA No. 38/18 is filed by the respondent bank to advance the hearing from 15.02.2018 to an earlier date. Ld. counsel for the respondent bank submitted that counter and typed set of documents had already been filed before the Registry on 20.01.2018 after serving copies to the other side. Notice in IA served to the other side. Ld. counsel for the appellant is present who prays time for filing counter in IA. At request, call on 06.02.2018 for filing counter in IA by the appellant and for hearing the parties.”

8. Agai