IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction

APPELLATE SIDE

Present:

The Hon’ble Justice Shampa Dutt (Paul)

CO 2235 of 2023

Rajesh Kumar Gupta & Ors.

Vs

High Rank Estate Advisory Pvt. Ltd. & Anr.

For the Petitioners : Ms. Noelle Banerjee,

Mr. Yash Vardhan Deora.

For the Respondent No.1 : Ms. Deblina Lahiri,

Ms. Moumita Sharma,

Mr. Mrinmoy Chatterjee.

For the Respondent No.3 : Mr. Victor Dutta.

Judgment reserved on : 25.03.2026

Judgment delivered on : 04.05.2026

Shampa Dutt (Paul), J.:

1. The civil revision has been preferred challenging judgement/order

dated 22

nd

June, 2023 passed by the Debts Recovery Appellate

Tribunal at Kolkata in Appeal No. 112 of 2022 (High Rank Estate

Advisory Private Limited …..Appellant Vs. Rajesh Kumar Gupta &

Others …..Respondents).

2. Vide the impugned judgement, the Learned Debts Recovery

Appellate Tribunal at Kolkata held as follows:-

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“31. There is another aspect of the matter. When the

Application before the Recovery officer was filed under

Section 22 (2)(e) (g) of the Recovery of Debts and

Bankruptcy Act wherein the order was passed by

Recovery Officer on 10.01.2012 which was assailed

before the Ld. DRT in Appeal under Section 30 of the

Recovery of Debts and Bankruptcy Act. Legal provisions

regarding inherent jurisdiction of the Recovery Officer

should have been considered by the DRT at the time of

deciding the Appeal, Ld. DRT did not make any effort to

look into the legality of the petition filed under Section

22(2) (e) (g) of the Act before the Recovery officer

whether it was legally maintainable or not. Hence, the

basic issue of maintainability of the Application before

the Recovery officer was not considered by the DRT

despite directions issued by this Appellate Tribunal.

32. However, now on the ba sis of discussion made

above, I am of the view that the Application filed by the

Respondent Nos. 3 and 4 before the Recovery Officer

was not legally maintainable.

33. Now, coming to another limb of arguments regarding

under-valuation of the property as alleged by the

Respondent Nos. 3 and 4 petition was filed under

Section 22 (2) (e)(g) of the Recovery of Debts and

Bankruptcy Act, I am of the view that since the

application Itself was not legally maintainable, hence all

the grounds taken in the Application could not be

considered.

34. On the basis of discussions made above, I am of the

view that the order passed by the Ld. DRT dated

05.10.2020 cannot sustain and is liable to be set aside.

Order passed by the Recovery officer in R.P No. 44 of

2010 should be restored.”

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3. It appears from the materials on record that vide the order dated

05.10.2020 passed by the Learned Debts Recovery Tribunal – 3

passed an order is as follows:-

“19. In view of the foregoing discussion and having

regard to the ratio of the Judgements and orders cited

above this appeal is deserved to be aligned. Accordingly

the appeal is allowed. Order dated 10.01.2012 passed

by learned Recovery Officer in R.P. 44 of 2010 is set

aside. Learned Recovery Officer is directed to

proceed with the recovery proceeding, from the

stage of obtaining fresh valuation report. He is

further directed to obtain a fresh valuation report

and intimate the value thereof to the appellants

and respondent no, 2 and 3 and fix reserve price

accordingly in a transparent manner after applying

his mind and pass a reasoned order. He is also

directed to allow the appellants and auction purchaser, if

they so like, to participate in the public auction to be held

and they shall be allowed to participate without

depositing EMD as would be fixed for the auction. In case

auction purchaser is not willing to participate in the public

auction or failed to bid at highest level, the sale price

already deposited by them shall be remitted back with

current savings bank interest rate within a month from

the date of confirmation of sate. The incidental expenses

and accrued Interest to remitting the sale price to the

auction purchaser, if so happen, shall be borne by the

appellants and respondent no.2 and 3. Since is an old

case and recovery of public money is involved, Id.

Recovery Officer is directed to complete the proceeding

within three months from the date of receiving this

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judgement. Consequently, aforesaid I. A. is also

disposed of. No costs.”

4. Order dated 10.01.2012 passed by the Recovery Of ficer in R.

P. No. 44 of 2009 is as follows:-

“43/10.01.2012

No one appears for the CDs. 4.

Ld. Adv. Shri N. K. Ray, the Receiver is present.

Ld. Adv. Ms P. Dutta is present, representing the CHB.

Shri N. Baid, the successful purchaser is also present.

It is seen from the record that today is set for issue of

final order in the case.

On perusal of the affidavits of the CDs, the purchaser

and the rebuttal of the CHB, I am of the opinion that

sufficient time and opportunity has been given to the CDs

to make payment for the debt, but they have not utilised

the opportunity and repaid the dues till date. There is no

reason to delay the sale process any longer. The plea of

the CDs No. 3 & 4 is thus rejected and disposed off.

The Ld. Receiver and the CHB is directed to act as per

Order No. 30 of 07/01/2011, 31 of 17/01/2011 & 32 of

01/02/2011, and take physical possession of the

concerned property, arrange for transfer of ownership,

registration of the property in the name of the successful

purchaser and handing over of the title deeds to the

successful purchaser through the Registry of this office.

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The Deputy Commissioner of Police (North), Kolkata

Police, is directed to assist the Ld. Receiver, Adv. N. K.

Ray, for police assistance and necessary protection,

through the Officer in Charge, Police Station Chitpur,

Kolkata Police, for giving physical possession of the

premises No. 23/1-A, Barrackpore Trunk Road, P.S.

Chitpur, Kolkata - 700 002, within 29/02/2012.

A copy of this order be issued to the CLB, the CDs, the Ld

Receiver, the successful purchaser and the above named

police officials, through the Registry of this office.

(Devashish Ghosh)

Recovery Officer, Government of West Bengal, Kolkata

Debts Recovery Tribunal.”

5. The petitioners’ case in short is that the petitioners being

borrowers could not pay Bank's dues for which Bank obtained an

ex-parte certificate in O.A. No. 13 of 2006 from Debts Recovery

Tribunal Kolkata-3 and initiated Recovery proceedings in R.P. Case

No. 44 of 2009, wherein the Recovery Officer held auction sale of

the Mortgaged property to the auction purchaser at under value

against which petitioners Nos. 3 and 4 being Co-borrowers moved

applications before Recovery Officer in auction sale as sale was

conducted by the R.O. at much below than marke t value, which

was dismissed.

6. The petitioners Nos. 3 and 4 against the order of Recovery Officer

moved Appeal No. 1 of 2016 which was disposed of on 10.07.2012

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against which two separate Appeal was filed by the petitioners and

auction purchaser (Respondent No.1 herein) which, was disposed

of on 28.04.2014 by Debts Recovery Tribunal with direction to

D.R.T. 3 to adjudicate afresh and D.R.T. 3 adjudicated afresh by

an order dated 8.12.2014 against which both the Respondents

moved another Appeal which was disposed of on 12.05.2017 by the

D.R.A.T with direction to Ld. D.R.T. 3, Kolkata again to adjudicate

afresh.

7. DRT-3 again decided the Appeal No. 1 of 2012 filed by the

petitioners and set aside order of Recovery Officer. Against the

Respondent No.1 filed Appeal No. 112 of 2022 and the D.R.A.T.

delivered Judgment therein on 22.06.2023 and allowed the Appeal

of the Respondent No. 1, i.e. the auction purchaser against which

the petitioners have filed this Civil Revisional Application for

dismissal of the Judgment delivered by the D.R.A.T. on 22 June,

2023.

8. Parties have filed their respective lists of dates and written notes

and have relied upon judgements in support of their case.

9. It is the contention of the petitioners herein that the application

under Section 22(2)(e) & (g) of the RDDB Act, 1993 was made

before the DRT-III and not before the Recovery Officer and it is

absolutely maintainable. Nomenclature of an application cannot be

a ground for rejection of an application. Nomenclature of an

application is irrelevant. Case law in Pepsi Food Limited Vs.

Special Judicial Magistrate (1998)5 SCC 749 paragraph 26 is

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relied upon. Such application was disposed of by the Learned

Recovery Officer on merit by order of 10

th

of January, 2012 without

questioning the maintainability.

10. It is further stated by the petitioners that the petitioners could not

invoke the provisions of Rules 60(1) of Second Schedule of Income

Tax as the same is inapplicable in the instant case. The petitioners

further state that the Appellate Tribunal has wrongly held that no

deposit was made in accordance with the Provisions of the Second

Schedule. It is stated that the order of DRAT would reflect that Rs.

10 lakhs was transferred by DRAT to DRT III and since then the

parties intentionally waived their objection with respect to

applicability of rule 61(b) of second schedule as would appear from

orders and record.

11. The petitioners further state that the Appellate Tribunal has

wrongly not considered the previous orders passed by the Appellate

Tribunal setting aside the sale with specific directions upon the D.

R. A. T.

12. Following judgments have been relied upon:-

(a) F. C. S. Software Solution Ltd. V. La Medical Devices Ltd.

Reported in (2008) 10 SCC 440.

(b) Navalkha & Sons Vs. Sri Ramanya Das report ed in (AIR

1970 SC 2037) (Para 6).

(c) Swastik Agency & Ors. Vs. State Bank of India reported in

(AIR 2009 Orissa 147) para 29.

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(d) Ram Kishun & Ors. Vs. State of U. P. & Ors. reported in

(2012) 11 SCC 511 (Para 17).

13. By relying upon the judgement in the case of United Bank of

India Vs. Naresh Kumar (1996) 6 SCC 660, the petitioners

submit that substantive rights should not be allowed to be

defeated on technical grounds of procedural irregularity.

14. The opposite party no.1 has relied upon the following

judgments:-

(i) (2013) 9 SCC 460, C.N. Paramasivam and Another vs

Sunrise Plaza through Partner and Ors.

(ii) 2015 SCC Online Bom 3398:2015 (6) Mh.L.J.152, Hotel

Paras Garden, Balapur and another vs Central Bank of

India, Balapur and ors.

(iii) 2021 SCC Online Mad 2871 , State Bank of India Rep. by

its authorized officer vs P.K. Janardhanan and ors.

(iv) 2022 SCC Online SC 1554, Registrar of Assurances and

Anr. vs ASL Vyapar Private Ltd. and Another.

15. It is argued by the opposite party no.1 that the Hon’ble Division

Bench of Bombay High Court, in Hotel Paras Garden, Balapur

and Another – Vs. Central Bank of India, Balapur and Others,

reported at 2015 SCC On line Bom 3398:2015 (6) Mh.L.J.152,

in the case before it, the petitioners had also not raised any

objections to the proclamation of sale and also had not deposited

the amount mandatorily to be deposited under the Second

Schedule of the Income Tax Act, The Hon’ble Court had held that

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statute under Rule 60 of the Income Tax Act gave one more

opportunity to reclaim the property, provided the deposit as made

under the said Rule was made.

16. The Hon’ble Court while dismissing the application, has also inter

alia, held that:-

“….They will have to plead and prove their diligence

and also steps taken to warn the bidders of their

grievances or of status of subject property. They must

see that irregularity, if any, is cured at the earliest and

cannot indulge in fence -sitting or wait till the

proceedings are over and then jump in, in an

attempt to unsettle it or to frighten the bidders

away. When they want financial institutes like the

Respondent No.1 Bank to give loan to them, they also

owe an obligation to it and public to see that in the

unfortunate event of forced recovery, it is not

unnecessarily obstructed. They must raise objections

at the earliest possible opportunity and cannot

take recourse to any roving tactics to indefinitely

delay recovery forcing the buyer to back out. Here

the petitioners have revealed same attitude which is

unbecoming on their part………”

17. It is pertinent to mention that the order of The Hon’ble Division

Bench of Bombay High Court in the above referred matter was

challenged in Special Leave to Appeal © No.23968 of 2015 before

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the Hon’ble Supreme Court of India, and vide Order dated

31.08.2015, the said Special Leave Petition was dismissed.

The order of dismissal of the Special Leave Petition was also

challenged by filing one Review Petition © No. 3439 of 2015,

which Review Petition was also dismissed by the Hon’ble

Supreme Court of India, vide Order dated 26.11.2015.

18. It is further stated that the question further framed by this

Hon'ble High Court vide Order dated 06.09.2023, as to whether

the money which was already deposited with the DRAT and sent

back to the DRT-III after first order of remand, could be treated

as a deposit in terms of the provision of the second schedule of

the Income Tax Act. It is submitted that the same can by no

stretch of imagination be treated to be a deposit under the

Second Schedule of the Income Tax Act, in as much as:-

Firstly, the amount referred to as pre-deposit under Section 21

of the RBBBFT Act and lying in F.D of the DRAT which has been

directed to stand transferred to DRT-3, is the amount which was

required to be deposited by the Petitioners while filing the appeal

before the DRAT and the same is only a portion of the

amount of debt, and cannot be equated to the amounts

mentioned in Rule 60 of the Second Schedule of The Income Tax

Act, 1961.

Secondly, the stage at which the amount under Rule 60 of the

Second Schedule of The Income Tax Act, 1961 is to be deposited

is at the time of filing the application for setting aside the sale

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and that too within 30 days from the date of the sale, whereas

the amount which was deposited with DRAT at the time of filing

the appeal, was way belated, i.e, when the order of the DRT-3,

Kolkata, was challenged by the Petitioners before the DRAT.

Thirdly, there is nothing forthcoming to show that what was

the amount of deposit and what is the status of the deposit as

on this date. However, even if the said is disclosed it would be

evident that the said amount is way less than the amount which

was required deposited under Rule 60 of the Second Schedule of

The Income Tax Act, 1961.

19. The opposite party no. 1 thus states that from the various

judgments referred to herein above. It is seen that it has been

repeatedly held that the deposit under Rule 60 of the Second

Schedule of The Income Tax Act, 1961 is by a defaulter (which

includes the guarantors herein) or any person whose interests

are affected by the sale (which again are the Petitioners herein).

The same was not done in the present case, which is an admitted

position. Hence, the Petition filed by the Petitioners praying for

setting aside and/or recalling the sale, could not have been at all

entertained by the Recovery Officer, not to speak of the DRT-3,

Kolkata, who has completely overlooked and/or deliberately

failed to deal with in the orders passed by it, which has on all

the three occasions, been set aside by the DRAT, Kolkata.

20. Finally, the opposite party no.1 submits that:-

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(a) the petition filed by the Petitioners for setting aside the sale

and/or recalling the orders passed for sale of property, is not

maintainable in view of the non-deposit of the sums prescribed in

Rule 60 of the Second Scheduled of The Income Tax Act, 1961.

(b) The Learned DRAT, Kolkata, had rightly adjudicated on the

point of the very maintainability of the petition filed before the

Recovery Officer, which was the principal point required to be

determined before proceeding further in the matter.

(c) The process of auction was completely transparent and fair

and the valuation report is a detailed one, clearly indicating the

reason for valuing the property at the said amount. The

Petitioners all along had knowledge of the valuation and the

proclamation of sale, but they were fence -watching and

never raised any objection to the same, unless one month

after the sale was over.

(d) There has been acquiesce and waiver on the part of the

Petitioners in as much as they had consented to the sale of the

property on 25.10.2010, if they would fail to pay the sum of Rs.

6 lakh. (Order dated 04.10.2010 passed by the Learned Recovery

Officer).

(e) Thus, the Civil Revisional Application is liable to be dismissed

with cost imposed upon the Petitioners, and directions to complete

the sale procedure and handing over possession of the purchased

property in favour of the Opposite Party No.1 in a time bound

manner.

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21. The opposite party no.2/Bank has also filed written notes of

argument and argued that the Hon'ble Appellate court has rightly

observed the conduct of the petitioners and even giving an

opportunity to make payment of the amount by the recovery

officer, the petitioners deliberately did not make any payment and

after the sale was confirmed, the petitioners No 3 and 4, who are

the wives of petitioners No 1 and 2 has come up with an

application before the Recovery Officer stating that the property

was under valued, inspite of the fact that the reserve price was

fixed and no objection was raised within time by the petitioners.

They deliberately did not attended the proceedings which shall be

evident from the orders passed by the Recovery Officer and also

from the proceedings of the Appeal before the Presiding officer,

DRT – 3.

CONCLUSION :-

22. Heard the learned counsels for the parties. On perusal of the

materials on record and considering the judgments relied upon, it

appears that the property in the present case was mortgaged with

the opposite party no.2 by the petitioners no. 1 & 2 with the

petitioners no. 3 & 4 as guarantor in the year 2003. 23 years have

passed. The petitioners have not repaid the loan but have

continued to move from one court to another to stall the sale

proceedings on the ground that the property was under-valued and

thus, the petitioners have suffered loss.

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23. The petitioners at the time of availing the loan had valued the

property at Rs.33 lakhs in the year 2003. In the year 2009, the

property was valued at Rs.12 lakhs 65 thousands, but the property

in the auction was purchased by the opposite party no.1 being the

highest bidder, for an amount of Rs.23 lakhs 61 thousands.

Almost double the value in the year 2010.

24. The contention of the petitioners is that the property valued at

Rs.33 lakhs in the year 2003 could not depreciate to such an

extent.

25. It appears that in the year 2003, the premises was tenanted to

some extent, which increased to 80 per cent of tenancy , thus

leading to its depreciation, as argued by the opposite party no.1.

26. Be that as it may, admittedly the petitioners being the

certificate debtors did not appear before the Recovery Officer

in spite of sufficient opportunity being granted and as such the

Recovery Officer was pleased to proceed with the sale proceedings.

27. Regarding the findings of the Appellate Tribunal in the impugned

order under challenge this Court finds that the Appellate Tribunal

has extensively dealt all the issues raised and the Appellate

Tribunal has rightly set aside the order of the D. R. T.-3, by

affirming the order of the Recovery Officer. As such this Court finds

no reason for interference with the order passed by the Appellate

Tribunal in the present revisional application.

28. The petitioners herein, only to stall the total proceedings, in spite

of having not made any payment, have not cooperated in any of the

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proceedings before the authorities concerned, but have continued

the litigations for 23 long years, on one pretext or the other and the

opposite party no.1 being the bona fide auction p urchaser is

running from pillar to post in the last years for the sale process to

be completed.

29. Accordingly, in the interest of justice, this Court directs that the

sale process be completed by the authority concerned as directed

in the order impugned within a period of sixty days from the date

of this order.

30. CO 2235 of 2023 is thus dismissed.

31. Urgent Photostat certified copy of this judgment, if applied for, be

supplied to the parties expeditiously after due compliance.

(Shampa Dutt (Paul), J.)