JUDGEMENT

Instant appeal preferred against the order dated 21.09.2017passed by learned DRT-III Kolkata in S.A. No. 242 of 2017.

2. Heard learned counsel for the parties and perused the records.

3.As would appear from the record that S.A. 242 of 2017 was filed by the respondent herein before learned DRT-III wherein anorder was passed on 17.07.2017 directing that the S.A. applicant(respondent herein) should deposit Rs.1.00 lakh by21.07.2017 i.e. the date of auction sale, and next week Rs.50,000/- to the respondent bank and in the case of compliance of the order bank shall defer the auction sale. Itappears that after passing of the order, Pay-order of Rs.1.00 lakh was prepared and was sent to the bank which was received on25.07.2017 and remaining Rs.50,000/- was also received by thebank on 29.07.2017. However, bank conducted the auction sale, which was challenged before the learned DRT where in the impugned order was passed holding that bank has violatedTribunal’s order dated 17.07.2017. Accordingly, auction saleconducted by the bank on 21.07.2017 was quashed with consequential order.

4. Learned counsel for the appellant submits that learned DRThas erred in arriving at a conclusion that amount of Rs.1.00 lakhdeposit offer was made by the daughter of the S.A. applicant on21.07.2017 rather it was offered on 24.07.2017. There is also acontradiction to the effect that in the S.A. pleading it was statedwife of the S.A. applicant offered whereas in the hearing it wassubmitted that daughter of the S.A. applicant went to the bank and offered the amount.

5. It is further submitted that no opportunity of filing objectionagainst the I.A. No. 1273 of 2017 was given wherein theconditional order dated 17.07.2017 was passed. It is furthersubmitted that since the order dated 17.07.2017 was not complied with by the S.A. applicant bank was within its jurisdiction to auction the property, accordingly sale was conducted. Appellant has also challenged the interest rate as imposed by the learned DRT and submits that impliedly the wholeS.A. was decided by the learned DRT. It is also submitted thatdaughter of the S.A. applicant had made statement before learned DRT, which was reflected in the impugned order, but respondent bank was not permitted to cross-examine the daughter.

6. Learned counsel for the respondent submits that orderpassed by learned DRT on 17.07.2017 was duly complied which shows the intention of the respondent to comply the order. It is further submitted that due to technical reason the earlier pay- order submitted by the respondent was not accepted by the bank.

Bank has accepted Rs.1.00 lakh and also Rs.50.000/-. Hence, there is compliance of the order passed by learned DRT.

However, appellant bank conducted the auction sale.

7.Learned DRT has passed following order on 17.07.2017 : “Considering the above situation, I direct applicant to payRs.1.50 lakh. Out of above said amount Rs.1.00 lakh shouldbe paid before the date of sale i.e. 21.07.2017 and balanceRs.50,000/- should be paid after one week. Thus, totalRs.1.50 lakh should be paid upto28..07.2017.On receipt of the above said amount i.e. 1.00 lakh on or before the date of sale and the balance Rs.50,000/- afterone week. Respondent bank is directed to defer the sale.” As far as order passed on 17.07.2017 is concerned there was aspecific direction to deposit Rs.1.00 lakh on the date of sale and remaining 50,000/- after one week. In case of compliance sale shall be deferred. Record shows that no time was sought by theappellant bank for filing opposition against the I.A. wherein the conditional direction was passed by learned DRT. Impugnedorder was passed on 21.09.2017 after hearing learned counsel for the respondent bank. But neither any time was sought to fileopposition against the I.A. nor any prayer was made for cross-examining the daughter of the S.A. applicant. Accordingly, it cannot be accepted that the statement made by the daughter could not be accepted.

8.As far