Union Bank Of India vs Rajat Infrastructure Pvt. Ltd.

2023INSC869 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

MISCELLANEOUS APPLICATION NO.1735 OF 2022 IN CIVIL APPEAL NO.1902 OF 2020

UNION BANK OF INDIA …APPELLANT

VERSUS

RAJAT INFRASTRUCTURE PVT. LTD. & ORS. …RESPONDENT(S)

AND

M/S. SUNVIEW ASSETS PVT. … APPLICANT LTD. (RESPONDENT NO.6)

J U D G M E N T

BELA M. TRIVEDI, J.

1. M.A. No.1735 of 2022 is filed in the Civil Appeal

No.1902 of 2020 (arising out of Special Leave Signature Not Verified Digitally signed by

Petition (Civil) No.28608 of 2019), by the SNEHA DAS Date: 2023.10.04 16:22:24 IST Reason:

Applicant (original Respondent No.6-M/s. Sunview

1 Assets Pvt. Ltd.) seeking directions to Union Bank

of India (original Appellant) to issue Sale letter

in favour of the Applicant in respect of the

property bearing House No.7, Survey No. Old 168 and

169 (New No.306 & 307) of Village Palasiayana,

Manormagank, Tehsil and District Indore admeasuring

109754 Sq. Ft. (2.18 Acres) (hereinafter referred

to as the ‘Subject Property’) on the ground that

the Applicant/ Auction Purchaser has made the full

and final payment of the auction amount alongwith

interest in terms of the order dated 12.05.2020

passed by this Court in M.A. No.922 of 2020.

2. The chequered history of the long-drawn litigation

between the parties may be summarized as under: -

(i) The appellant in the Civil Appeal No.1902 of

2020 is a bank, a body Corporate constituted

under the Banking Companies (Acquisition and

Transfer of Undertakings) Act, 1970. The

Respondent No.1-Rajat Infrastructure Pvt.

Ltd. claimed to be the owner of the Subject

2 Property, the Respondent No.2-Manindra

Chandrasen and Respondent No.3-Sharad

Chandrasen claimed to be in the possession

of the subject property, Respondent No.4-

Zoom Developers Pvt. Ltd. and Respondent

No.5-Zoom Vallabh Steel Ltd. were the

borrowers. In order to secure the credit

facilities/ loan granted by the Appellant

Bank to the Respondent No.4 and 5, the

Respondent No.1 on 15.04.2005 had mortgaged

its interest in the subject property to the

Appellant Bank.

(ii) The Respondent No.4 & 5 having failed to

repay the credit facilities/ loan granted by

the appellant bank, the proceedings under

Section 13 of the Securitisation and

Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002

(hereinafter referred to as the ‘SARFAESI

Act’) were initiated by the Appellant Bank

3 in respect of the Subject Property mortgaged

with it.

(iii) After certain proceedings before the Debt

Recovery Tribunal (DRT) and Bombay High

Court having taken place between the

parties, the Appellant on 13.06.2019 had

issued a notice for e-auction sale of the

said property under the SARFAESI Act,

scheduling the auction sale on 04.07.2019.

(iv) The Respondent no.1-Rajat Infrastructure

preferred a Securitization Application No.

115 of 2019 on 30.06.2019, before the DRT

for restraining the Appellant Bank from

taking any further steps including the sale

and confirmation of sale in respect of the

Subject Property, on the ground that the

Bank-the secured creditor had failed to make

proper valuation of the Subject Property

before proceeding with the auction sale as

contemplated under sub Rule (5) of Rule 8 of

4 the Security Interest (Enforcement) Rules,

2002 (for short,‘the said Rules’).

(v) In the said Securitization Application No.

115 of 2019, the Respondent no.1 Rajat

Infrastructure had also filed an

Interlocutory Application No. 822 of 2019

seeking interim relief restraining the

Appellant Bank from proceeding further with

the proposed auction sale, pending the main

application. The DRT Mumbai vide the order

dated 11.11.2019 refused to grant the ad

interim relief as prayed for in I.A. No. 822

of 2019.

(vi) The Respondent no.1 being aggrieved by the

said order passed by the DRT, preferred a

Writ Petition being (ST No.29319 of 2019).

The Bombay High Court vide the order dated

25.11.2019 relegated the Respondent no.1 to

the statutory remedy of appeal before the

Debt Recovery Appellate Tribunal (for short

5 ‘DRAT’). It was observed in the said order

by the High Court that: -

“the petitioner has an efficacious alternate remedy of appeal before the learned DRAT, where no pre-deposit is required.”

(vii) Pending the said Writ Petition before the

High Court, the auction having taken place,

the Respondent no.6 M/s. Sunview Assets Pvt.

Ltd. (the Applicant herein) claimed to be

the highest bidder for a sum of Rs.65.62

Crores. The Bombay High Court therefore vide

the order dated 20.11.2019 permitted the

Respondent no.6 to be impleaded in the said

Writ Petition.

(viii) The Respondent no.6, on the High Court

disposing of the Writ Petition observing

that the Respondent no.1 had an efficacious

alternative remedy of appeal before the

DRAT, where no pre-deposit was required, had

filed a review petition before the High

Court. The said review petition came to be 6 dismissed by the High Court vide the order

dated 16.12.2019.

(ix) The Appellant Bank, being aggrieved by the

observations made by the High Court in the

order dated 25.11.2019, with regard to the

pre-deposit, preferred an appeal being Civil

Appeal No.1902 of 2020 (arising out of SLP

(C) No.28608 of 2019), and the Respondent

no.6 also being aggrieved by the order of

the High Court passed on 16.12.2019

dismissing its review petition, preferred an

appeal being the Civil Appeal No.1903 of

2020 (arising out of SLP (C) No.1753 of

2020) before this Court.

(x) This Court by a common judgment and order

dated 02.03.2020 allowed both the said

appeals by setting aside the orders dated

25.11.2019 and 16.12.2019 passed by the High

Court in so far as it was observed therein

that pre-deposit was not required. This

7 Court to be precise, passed the following

order: -

“11. In view of the above discussion, we set aside both the orders dated 25.11.2019 and 16.12.2019 of the High Court in so far as they hold that pre-

deposit is not required and allow the appeals. We reiterate that we have not gone into the merits of the contentions raised by the parties which shall be decided by the DRAT when it entertains the appeal and is called upon to do so. We extend the time given to the auction purchasers, respondent no.6 to deposit the balance of the sale amount till 20.03.2020. We also direct that in case respondent no.1 files an appeal within 30 days of the pronouncement of this order it shall not be rejected on the ground of limitation.”

A corrigendum order directing some

corrections was passed by the court on

04.03.2020.

(xi) The Applicant–Auction Purchaser preferred

M.A. No.894 of 2020 in the said disposed of

Civil Appeal No.1902 of 2020 seeking

extension of time for payment of balance

sale price of Rs.49,21,50,000/- (Rupees

Forty-Nine Crores Twenty-One Lakhs Fifty

8 Thousand Only) on the ground that due to

Covid-19 pandemic the Applicant could not

raise the required balance sale price. The

Court vide order dated 20.03.2020 allowed

the extension of time to deposit the balance

sale consideration by 30.04.2020, further

observing that: -

“No further extension shall be granted.”

(xii) Another M.A. No.922 of 2020 came to be filed

by the Applicant/ Auction Purchaser seeking

further extension of time on the ground that

there was no improvement in the pandemic

situation. This Court vide order dated

12.05.2020 considering the lockdown declared

on account of the Covid-19, extended the

time to deposit the remaining amount till

two months after lifting of lockdown. In the

said order the court directed the Applicant

to pay interest at the lending rate for the

9 period starting from 20.03.2020 till the

date of deposit.

(xiii) The Applicant deposited Rs.4,80,00,000/-

(Rupees Four Crores and Eighty Lakhs) on

30.03.2021, Rs.5,00,00,000/- (Rupees Five

Crores) on 21.08.2021 and Rs.5,00,00,000/-

(Rupees Five Crores) on 15.03.2022.

(xiv) The Applicant again filed M.A. No.1126 of

2022 seeking extension of time to deposit

the remaining amount of Rs.34,41,50,000/-

(Rupees Thirty-Four Crores Forty-One Lakhs

Fifty Thousand Only).

(xv) The Respondent No.1 i.e., Rajat

Infrastructure therefore filed M.A. No.1164

of 2022 seeking recall of the order dated

12.05.2020 passed by the court in M.A.

No.922 of 2020 and sought directions against

the Appellant Bank to initiate the

proceedings in terms of Section 14 of the

SARFAESI Act. The Respondent No.1 in the

10 said application had also sought action

against the officials of the Respondent-Bank

and the Applicant M/s. Sunview Assets Pvt.

Ltd. alleging fraud, collusion, and

conspiracy.

(xvi) On 11.07.2022, the court passed an interim

order in the said applications directing to

list the matter on 26.07.2022 and observed:

“As at present, we have not passed any order, whether on the prayer for enlargement of time, as sought for by the respondent no.6 or on the other prayer for not granting any other enlargement but, we still leave it open for the respondent no.6 to make the requisite payment before the next date. We see no more at present.”

(xvii) In view of the said order passed by the

court on 11.07.2022, the Applicant

deposited further amount of

Rs.34,41,50,000/- (Rupees Thirty-Four

Crores Forty-One Lakhs Fifty Thousand Only)

after deducting 1 percent TDS of the total

11 auction purchase value with the bank on

22.07.2022.

(xviii) The Applicant (original Respondent No.6)

thereafter filed an application being I.A.

No.107669 of 2022 praying for waiver or

reduction of interest amount as earlier

directed in the order dated 12.05.2020.

However, during the course of hearing on

10.08.2022, the learned counsel appearing

for the Applicant did not press for the

said I.A. and submitted that the Applicant

shall make payment of the requisite amount

of interest to the bank. He also did not

press for the M.A. No.1126 of 2022. The

learned counsel appearing for the

Respondent No.1 – Rajat Infrastructure

also did not press for the M.A. No.1164 of

2022, however, sought liberty to take

recourse to other appropriate remedies in

accordance with law. The court taking note

12 of the submissions of the respective

parties passed following order on

10.08.2022.

“…………… We have only taken note of the submissions of the respective parties in this regard and are not making any comments on the merits of the submissions either way.

Suffice it to observe for the present purpose that with disposal of M.A. No. 1126 of 2022, no further orders are required on the pending applications in this matter. Hence, they stand disposed of as such.

It goes without saying that other pending matters shall be dealt with on their own merits and strictly in accordance with law.

The other applications for intervention, permission for filing the application for intervention (I.A. No.100718 of 2022 and I.A. No.10713 of 2022) as also the application for direction, being I.A. No.100735 of 2022 are also rendered redundant and stand disposed of as such.”

(xix) The Applicant/ Auction Purchaser thereafter

deposited with the Appellant Bank a sum of

Rs.7,17,02,859.45/- (Rupees Seven Crores

Seventeen Lakhs Two Thousand Eight Hundred

Fifty-Nine and Forty-Five Paise) towards the

interest amount. The Appellant Bank vide

13 letter dated 26.08.2022, acknowledged the

receipt of the said amount.

3. The Applicant (original respondent no.6 in C.A. No.

1902 of 2020) has now filed the instant M.A.

No.1735 of 2022 seeking the directions as stated

hereinabove. The application has been resisted by

the Respondents by filing their respective replies.

The Respondent no.1 Rajat Infrastructure has mainly

contended that the Miscellaneous Application filed

in the disposed of Civil Appeal, seeking directions

to the bank for issuing the sale certificate is not

maintainable, more particularly when the Applicant

has failed to comply with the orders passed by this

Court from time to time and when the Applicant has

also not complied with the provisions contained in

Rule 9 of the said Rules. The Respondent no.1 has

also alleged collusion between the Applicant and

the Appellant Bank. The other Respondents no.2 to 5

have also broadly supported the contentions raised

by the Respondent no.1. The Appellant Bank has

14 filed the affidavit in reply on 23.11.2022 relying

upon its earlier affidavit filed with regard to the

status report dated 06.08.2022 (Annexure A7 of the

M.A. paper book). It has been contended inter alia

that even if the lockdown was considered to be in

operation till the end of February 2022, then also

the full payment as per the Court’s order dated

12.05.2020 should have been made on or before

30.04.2022, but the same was not made.

4. It may be noted that none of the parties has placed

on record any material to show as to on which

particular date the lockdown was lifted in the

state of Maharashtra. However, taking note of the

orders passed by this Court in Suo Motu Writ

Petition (C) No.03 of 2020, extending period of

limitation in all proceedings before the Courts and

Tribunals, including this Court, on account of the

outbreak of the Covid-19 pandemic, it may be safely

presumed that the time limit whenever was to expire

in the proceedings was extended upto February 2022,

15 and that in the instant case, therefore the

Applicant was required to deposit the amount as

directed by this Court in the order dated

12.05.2020, two months after February 2022 i.e., on

or before 30.04.2022.

5. Before adverting to the contentions raised by the

learned counsels for the Respondents, with regard

to the maintainability of the instant Miscellaneous

Application seeking directions against the

Appellant-Bank for issuance of sale letter in

favour of the Applicant, let us first address the

issue whether the extension of time sought by the

Applicant in the successive applications was

permissible in the eye of law, and even if

permissible, whether the Applicant had in fact

complied with the orders passed by the Court from

time to time in the said applications.

6. At this juncture, it would also be necessary to

refer to Rule 9 of the said Rules which deals with

“Time of sale, issue of sale certificate and

16 delivery of possession etc.,” with regard to the

sale of immovable secured assets through e-auction

mode. Rule 9 of the Rules reads as under: -

“9. Time of sale, issue of sale certificate and delivery of possession, etc.-

[(1) No sale of immovable property under these rules, in first instance shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) of rule 8 or notice of sale has been served to the borrower:

Provided further that if sale of immovable property by any one of the methods specified by sub-rule (5) of rule 8 fails and sale is required to be conducted again, the authorized officer shall serve, affix and publish notice of sale of not less than fifteen days to the borrower, for any subsequent sale.] (2) The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorized officer and shall be subject to confirmation by the secured creditor:

Provided that no sale under this rule shall be confirmed, if the amount offered by sale price is less than the reserve price, specified under sub-rule (5) of [rule8]:

Provided further that if the authorized officer fails to obtain a price higher than the reserve price, he may, with the consent of the borrower and the secured creditor effect the sale at such price. [(3) On every sale of immovable property, the purchaser shall immediately, i.e., on the same day or not later than next 17 working day, as the case may be, pay a deposit of twenty five percent of the amount of the sale price, which is inclusive of earnest money deposited, if any, to the authorized officer conducting the sale and in default of such deposit, the property shall be sold again.] (4) The balance amount of purchase price payable shall be paid by the purchaser to the authorized officer on or before the fifteenth day of confirmation of sale of the immovable property or such extended period [as may be agreed upon in writing between the purchaser and the secured creditor, in any case not exceeding three months].

(5) In default of payment within the period mentioned in sub-rule (4), the deposit shall be forfeited [to the secured creditor] and the property shall be resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.

(6) On confirmation of sale by the secured creditor and if the terms of payment have been complied with, the authorized officer exercising the power of sale shall issue a certificate of sale of the immovable property in favour of the purchaser in the Form given in Appendix V to these rules.

(7) Where the immovable property sold is subject to any encumbrances, the authorized officer may, if the thinks fit, allow the purchaser to deposit with him the money required to discharge the encumbrances and any interest due thereon together with such additional amount that may be sufficient to meet the contingencies or further cost, expenses and interest as may be determined by him:

[Provided that if after meeting the cost of removing encumbrances and contingencies there is any surplus available out of the money deposited by the purchaser such surplus shall be paid

18 to the purchaser within fifteen days from the date of finalization of the sale.] (8) On such deposit of money for discharge of the encumbrances, the authorized officer [shall] issue or cause the purchaser to issue notices to the persons interested in or entitled to the money deposited with him and take steps to make the payments accordingly. (9) The authorized officer shall deliver the property to the purchaser free from encumbrances known to the secured creditor on deposit of money as specified in sub-rule (7) above.

(10) The certificate of sale issued under sub-rule (6) shall specifically mention that whether the purchaser has purchased the immovable secured asset free from any encumbrances known to the secured creditor or not.”

7. As discernible from the afore-stated sub-rule (4)

of Rule 9, the balance amount of purchase price

payable by the purchaser to the authorized Officer

has to be paid on or before the fifteenth day of

confirmation of sale of the immovable property or

such extended period as may be agreed upon in

writing between the purchaser and the secured

creditor, in any case not exceeding three months.

Sub-rule (5) thereof states that in default of

payment within the period mentioned in sub-rule

19 (4), the deposit shall be forfeited to the secured

creditor and the property shall be resold, and that

defaulting purchaser shall forfeit all claim to the

property or to any part of the sum for which it may

be subsequently sold. As per sub-rule (6) thereof,

on the confirmation of sale by the secured creditor

and if the terms of payment have been complied

with, the authorized Officer exercising the power

of sale would issue a certificate of sale of the

immovable property in favour of the purchaser in

the form prescribed under the Rules.

8. Now, it is well settled proposition of law that

when a statute requires a particular thing to be

done in a particular manner, it must be done in

that manner or not at all, and other methods of

performance are necessarily forbidden.1

9. In the instant case, out of the total bid amount of

Rs.65.62 Crores finalized on the date of auction

sale i.e., 11.11.2019, the Applicant had deposited 1 Taylor vs. Taylor, [L.R.] 1 Ch.426 approved by the Supreme Court in Rao Shiv Bahadur Singh and Another vs. The State of Vindhya Pradesh AIR 1954 SC 322; State of Uttar Pradesh vs. Singhara Singh and Others AIR 1964 SC 358 and in Babu Verghese and Others vs. Bar Council of Kerala and Others (1999) 3 SCC 422.

20 an amount of Rs.31,20,50,000/- (Rupees Thirty-One

Crores Twenty Lakhs Fifty Thousand) only with the

bank and was required to deposit the balance amount

with the authorized officer of the bank on or

before the fifteenth day of the confirmation of

sale of the subject property i.e., on or before

26.11.2019 as per Rule 9(4) of the said Rules.

However, this Court while disposing of the said

Civil Appeals Nos. 1902 & 1903 of 2020 vide the

order dated 02.03.2020 permitted the Respondent

No.6 (Applicant herein) to deposit the balance of

sale amount till 20.03.2020.

10. As per the chronology of events stated hereinabove,

the Applicant did not deposit the balance sale

amount on or before 20.03.2020. Thereafter, the

Applicant projecting the cause of Covid-19, sought

extension of time for payment of the balance sale

price by filing the M.A. No.894 of 2020. The court

vide the order dated 20.03.2020, extended the date

21 upto 30.04.2020, clarifying that no further

extension shall be granted.

11. Again, the Applicant filed another M.A. No.922 of

2020 seeking further extension of time on the

ground that there was no improvement in the Covid-

19 pandemic situation, and the court passed an

order on 12.05.2020, extending the time to deposit

the remaining amount till two months after lifting

of lockdown. In the said order, the court directed

the Applicant to pay interest at the lending rate

for the period starting from 20.03.2020, till the

date of deposit.

12. However, the Applicant, instead of making the said

deposit of the entire balance amount with interest

(which at the relevant time had accrued to more

than fifty crores) deposited Rs. 4,80,00,000/-

(Rupees Four Crores Eighty Lakhs) on 30.03.2021,

Rs.5,00,00,000/- (Rupees Five Crores) on 21.08.2021

and another Rs.5,00,00,000/- (Rupees Five Crores)

on 15.03.2022.

22

13. The Applicant thereafter again filed M.A. being

No.1126 of 2022 seeking extension of time to

deposit the remaining amount. The said application

was strongly resisted by the Appellant Bank and by

the other Respondents and therefore, the court

passed the interim order on 26.07.2022 observing

that “the court had not passed any order either

accepting the prayer or rejecting the prayer for

enlargement of time, however, it was left open for

the applicant – respondent no.6 to make requisite

payment before the next date.”

14. The Applicant thereafter deposited with the bank a

sum of Rs.33,75,88,000/- (Rupees Thirty-Three

Crores Seventy-Five Lakhs Eighty-Eight Thousand

Only) on 22.07.2022 after deducting 1 percent TDS

of the total auction purchase value. The Applicant

thereafter deposited with the bank a sum of

Rs.7,17,02,859.45/- (Rupees Seven Crores Seventeen

Lakhs Two Thousand Eight Hundred Fifty-Nine and

23 Forty-Five paise) towards the interest amount on

26.08.2022.

15. From the afore-stated state of affairs, it appears

that the extension of time granted by the court

vide the order dated 12.05.2020, which was self-

limiting, had lapsed or expired at least by

30.04.2022 as per the version of the Appellant

Bank. Thereafter, there was no order passed by the

court specifically extending the time limit.

Significantly, there is no clarification made by

the Applicant M/s. Sunview Assets Pvt. Ltd., as to

how the deposit of Rs.34,41,50,000/- on 22.07.2022

and the deposit of Rs.7,17,02,859.45/- on

26.08.2022 made with the Appellant Bank were in due

compliance of the orders passed by the Court from

time to time and particularly of the order dated

12.05.2020. When the Court had passed the order on

12.05.2020 extending the time to deposit the

remaining amount till two months after lifting of

the lockdown and to pay interest at the lending

24 rate for the period starting from 20.03.2020 till

the date of the deposit, it was incumbent on the

part of the Applicant to state as to when exactly

the lockdown was lifted, what was the lending rate

of interest at the relevant time, and how much

amount the Applicant was required to pay towards

the balance sale price and towards the interest for

the period starting from 20.03.2020 till the

deposit was made.

16. Even if a lenient view is taken considering the

orders passed by this Court in the Suo Motu Writ

Petition (C) No.3 of 2020 that the period of

limitation had stood extended upto February, 2022

on account of the outbreak of Covid-19 pandemic,

then also the Applicant was required to make

deposit of the entire balance amount with interest

within two months thereafter as per the order

passed by this Court on 12.05.2020 in M.A. No.922

of 2020, which the Applicant had failed to comply.

25

17. The submission of the learned Senior Advocate Mr.

Dushyant Dave for the Applicant that this Court

should treat the deposits made by the Applicant on

22.07.2022 and on 26.08.2022 as due compliance of

the order dated 12.05.2020, extending the time

limit by exercising the inherent powers of the

Supreme Court under Article 142 of the Constitution

of India or exercising the powers conferred on the

court under Section 148 of the Civil Procedure

Code, cannot be accepted in view of the statutory

provision contained in Rule 9 of the said Rules. As

per the sub-Rule (4) of Rule 9, the balance amount

of purchase price payable has to be paid by the

purchaser to the authorized officer on or before

the fifteenth day of the confirmation of sale or

such extended period as may be agreed upon in

writing between the purchaser and the secured

creditor, in any case not extending three months.

Even if by liberal construction of the said sub

rule, and in view of the orders passed by this

26 Court from time to time in the successive

applications filed by the Applicant, it is presumed

that the time to deposit the balance amount with

interest had stood extended two months after

February, 2022, i.e., upto 30.04.2022, no further

extension of time as such was granted by the Court

nor was it permissible to extend under the said

statutory provision contained in Rule 9 of the said

rules. It cannot be gainsaid that the court in

exercise of powers under Article 142 cannot ignore

any substantive statutory provision dealing with

the subject. The plenary powers of the Supreme

Court under Article 142 are inherent in nature and

are complementary to those powers which are

specifically conferred on the court by various

statutes. These powers though are of a very wide

amplitude to do complete justice between the

parties, cannot be used to supplant the substantive

law applicable to the case or to the cause under

consideration of the court. As observed by this

27 Court in Supreme Court Bar Association vs. Union of

India and Another 2 , Article 142 even with the width

of its amplitude cannot be used to build a new

edifice where none existed earlier, by ignoring the

express statutory provisions dealing with a subject

and thereby to achieve something indirectly which

cannot be achieved directly. Even Section 148 of

CPC does not permit the court to extend the time

limit beyond thirty days of the time limit fixed by

the court earlier.

18. It is pertinent to note that the instant

Miscellaneous Application has been filed by the

Applicant seeking substantive prayer/ direction

against the Appellant Bank for the issuance of the

sale certificate on the ground that the Applicant

has made full and final payment of auction amount

with interest in terms of the order dated

12.05.2020 passed in M.A. No.922 of 2020. Apart

from the fact that the Applicant had not complied

2 (1998) 4 SCC 409 28 with the orders passed by this Court from time to

time in the successive applications filed by it,

and more particularly the order dated 12.05.2020

passed in M.A. No.922 of 2020, such an application

in the disposed of Civil Appeal No.1902 of 2020, to

pursue its strategies and to avoid judicial

adjudication in the substantive proceedings, would

not be even maintainable in the eye of law. Such a

trend emerging in this Court of filing repeated

applications, styled as Miscellaneous Applications,

without any legal foundation has been strongly

deprecated by this Court in Supertech Limited vs.

Emerald Court Owner Resident Welfare Association and

Others3, in which it was observed as under: -

“A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A

3 2021 SCC Online SC 3422 29 judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”]”

19. It is also pertinent to note that there is nothing

on record to suggest as to whether the Respondent

No.1 – Rajat Infrastructure Pvt. Ltd. and Others

had preferred any appeal before the DRAT in view

of the order passed in Civil Appeal No.1902 of

2020 on 02.03.2020, and if preferred whether the

same is pending or not. There is also no clarity

about the final outcome of the main Security

Application preferred by the Respondent No.1 Rajat

Infrastructure Pvt. Ltd. and Others before the

DRT. Be that as it may, the instant Miscellaneous

Application seeking substantive prayers filed in

the said disposed of Civil Appeal No.1902 of 2020

being not maintainable cannot be entertained and

deserves to be dismissed. We may however clarify

30 that it would be open to the applicant to take

recourse to any other remedy that may be

permissible under the law for the prayers sought

in the present application, or to file appropriate

proceedings seeking refund of the amount deposited

with the appellant-bank, as may be permissible

under the law.

20. In that view of the matter, the Miscellaneous

Application No.1735 of 2022 is dismissed.

…………………………………………. J.

[ANIRUDDHA BOSE]

…………………………………………. J.

[BELA M. TRIVEDI]

NEW DELHI;

October 04th, 2023

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