IN THE HIGH COURT OF MADHYA PRADESH AT INDORE COMP No. 8 of 1981 (VIRENDRA SINGH Vs M.S NANDLAL BHANDARI)

Dated : 11-05-2022 Shri Vivek Patwa, counsel for the petitioners.

Shri D. S. Panwar, counsel for the respondent - State Bank of India.

Shri H. Y. Mehta, counsel for official liquidator.

Shri Sitaram S. Gupta, Official Liquidator is present in person.

O R D E R

1] Heard on I.A. No.5948 of 2021, which is an application filed under Rule 9 of the Companies Court Rules, 1959 by the petitioners seeking the following reliefs:-

“a) Declare the judgment and decree obtained by the bank against the applicant as null and void being vitiated by fraud and b) Stay the operation of the proceedings before the Recovery Officer of DRT in Case No.TAEX.74/2002 till the adjudication of the claim and decision of the applications filed by the petitioner as well as Bank in this behalf before this Hon'ble Court.

c) The Official Liquidator be directed to institute appropriate criminal proceedings against the erring officials of the bank for abusing the process of law.

d) That the DRT be directed to withdraw/recall the show cause notice dated 29.06.2021 proposing to attach the property of the HUF, and e) This Hon'ble Court further be pleased to grant such other relief/reliefs to the petitioners as deemed fit in the facts and circumstances of the present case.”

2] The grievance of the petitioners is that the notice dated 29.06.2021 has been served upon them which is in the name of Deepak Bhandari and Virendersingh Bhandari, regarding attachment of their property for sale for recovery of their dues, this is despite the fact that the property does not belong to Deepak Bhandari and Virendersingh Bhandari in their personal capacity as the same is a Hindu undivided family property. The documents regarding which have also been placed on record. Counsel for the petitioners has also drawn the attention of this Court to an order dated 05.02.1982 passed by this Court in Company Petition No.04 of 1972 whereby this Court had allowed the respondent-bank to pursue with the civil suit, however, it was directed that the decree, if any, passed in favour of the bank shall not be enforced against the company without the leave of this Court and despite seeking leave of this Court the respondents are bent upon to execute the decree, which has been passed by the Debt Recovery Tribunal (DRT) on 18.06.2002, which is also bad in law as no opportunity of hearing was given to the petitioners as they were not impleaded as the party by the bank.

3] A reply to the aforesaid application has also been filed by the State Bank of India wherein it is contended the application being devoid of merits, is liable to be dismissed for the reason that against the aforesaid notice dated 29.06.2021 the petitioners have an alternative remedy of appeal under Section 30 of The Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the “RDB Act”) and without availing the aforesaid remedy, this application has been filed directly before this Court in the company petition and the RDB Act being a special Act has overriding effect over the Companies Act, hence, the application itself is not maintainable and is liable to be dismissed on this ground alone.

4] On merits, it is submitted that the decree dated 18.06.2002 passed by the DRT has also been assailed by Shri Virendersingh Bhandari in M.A. No.63 of 2002, which came to be dismissed on 29.04.2004 under Section 22 (2) (g) of DRT Act and another appeal M.A. No.70 of 2002, which was filed by the legal heirs of defendant No.2 Shri Suganmal Bhandari has also been dismissed under Section 22 (2) (g) of DRT Act and thus the decree has already attained the finality and the only procedural formalities, which requires to be completed is the execution of the aforesaid decree for which the respondent – bank has already preferred an application I.A. No.2661 of 2002 in this company petition, which is still pending. Thus, it is submitt