HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9341/2021
1. M/s Hotel THE ROYAL PLAZA, through its sole proprietor
Manjeet Kaur, having its office at 26, Hatwara Road, Near
Kiran Nursingh Road, Hasanpura, Sodala, Jaipur.
2. Manjeet Kaur Wife of Shri Uttam Singh, Resident of 26,
Hatwara Road, Near Kiran Nursingh Road, Hasanpura,
Sodala, Jaipur.
----Petitioners
Versus
Bank of India, Corporate Office at Star House, Bandra Kurla
Complex, Mumbai, Branch Office at 202, Narsingh Tower,
Opposite Sanjeevani Hospital, New Sanganer Road, Jaipur (Raj.)
----Respondent
For Petitioner(s) : Mr. Mitul Jain
For Respondent(s) : Mr. Ajay Shukla
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
03/03/2022
The instant petition challenges order dated 22.10.2019 passed by the Debt Recovery Tribunal, Jaipur and judgment dated 27.04.2021 passed in O.A. No.989/2018.
Counsel for the petitioners submitted that the present petitioners had taken a term loan for business purposes from the respondent-bank in the year 2013. The petitioners paid regular EMIs but due to certain financial difficulties and on account of loss in business, the account of the petitioners become NPA.
Counsel submitted that Ministry of Finance issued a Gazette Notification dated 06.09.2018 whereby limit of recovery proceedings under The Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short 'the Act of 1993') before (Downloaded on 05/03/2022 at 09:00:11 PM) (2 of 6) [CW-9341/2021] the DRT was increased from Rs.10 lacs to Rs.20 lacs and matters above Rs.20 lacs could be filed before the DRT.
Counsel submitted that the Notification dated 06.09.2018 was put to challenge before the Division Bench of this Court and there was an interim order passed on 11.11.2018.
Counsel for the petitioners submitted that respondent-bank taking advantage of the stay granted by this Court, filed an original application under Section 19 of Recovery of Debts and Bankruptcy Act, 1993 before the DRT, Jaipur on 17.11.2018 and said O.A. was accepted by the DRT, subject to the final outcome of the pending petition.
Counsel submitted that writ petition pending before this Court was finally decided vide judgment dated 01.07.2019.
Counsel submitted that the application filed by the respondent-bank was returned by the DRT, Jaipur on 23.07.2019 and as such the application filed by the respondent-bank became final and same was no more pending.
Counsel submitted that the DRT, Jaipur vide order dated 16.10.2019 passed an order said to be in compliance of Ministry of Finance Department of Financial Services issued a letter dated 01.08.2019 and the Tribunal found that cases which were filed before the DRT, Jaipur during stay period that is 26.09.2018 to 30.06.2019 were to continue in DRT, Jaipur till its conclusion.
Counsel submitted that the DRT, Jaipur on 22.10.2019 had taken up the O.A. of the respondent-bank for admission and issued notices to the petitioners.
Counsel submitted that since the original application of the respondent-bank was already permitted to be withdrawn and proceedings were no more pending, as such DRT, Jaipur proceeded (Downloaded on 05/03/2022 at 09:00:11 PM) (3 of 6) [CW-9341/2021] exparte against the petitioners and passed the order on 27.04.2021 and the same is under challenge before this Court.
Counsel submitted that the clarification which was issued by the Ministry of Finance Department of Financial Services on 01.08.2019 was only applicable in respect of those proceedings where O.A. were filed during stay period and they were to continue before DRT, till their conclusion and since the proceedings against the petitioners were already concluded, as such, the Tribunal has committed grave error in passing the impugned order as well as the final order.
Counsel for the petitioners further submitted that there is no inherent power with the DRT to recall its order or to treat any application for revival of proceedings and then to decide on merits.
Counsel submitted that assuming, if power is conferred in DRT, as per the provision contained in Section 19(25) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, the same power does not authorize Debt Recovery Tribunal to pass order of the nature which has been passed in the present case.
Counsel in support of his submissions places reliance on a judgment passed by the Apex Court in the case of Standard Chartered Bank Vs. Dharminder Bhohi and Ors., reported in JT 2013 (13) SC 69.
Mr. Ajay Shukla, learned counsel appearing for the respondent-bank has raised preliminary objection and submitted that present writ petition filed by the petitioners is not maintainable in view of statutory appeal provided under Section (Downloaded on 05/03/2022 at 09:00:11 PM) (4 of 6) [CW-9341/2021] 20 of the Debt Recovery Tribunal Act, 1993 (for short 'the DRT Act, 1993) Counsel submitted that the Tribunal has not committed any illegality in passing the order dated 22.10.2019 as the application was revived in view of Notification issued by the Ministry of Finance and proper notice was issued to the petitioners for appearing.
Counsel submitted that in spite of service being effected on the petitioners when no one appeared, the Tribunal was constrained to proceed exparte and finally an order dated 27.04.2021 has been passed.
Counsel submitted that not only the application filed by the respondent-bank against the present petitioners was taken up and revived by the DRT, there were also many such cases where similar orders were passed and as such the petitioners have not been singled out for deciding the original application filed by the respondent-bank.
Counsel submitted that if at all, the petitioners have any grievance, the same cannot be allowed to be raised in the present writ petition and petitioners are required to approach the appropriate appellate authority.
Counsel further submitted that once the Division Bench of this Court had decided the writ petition on 01.07.2019 and Notification of the Union of India was upheld, the necessary clarification was issued by the Ministry of Finance and it was followed throughout the country for entertaining the original applications of having pecuniary jurisdiction as was prescribed in the Notification.
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(5 of 6) [CW-9341/2021] Counsel further submitted that the non-appearance of the petitioners before the authorities and further not paying a single penny after receipt of substantial loan amount, speak volumes about the conduct and bonafides of the present petitioners and in the writ jurisdiction, the conduct of the petitioners does not make them entitled for any equitable relief.
I have heard learned counsel for the parties and with their assistance perused the material available on record.
This Court finds that initial original application which was filed by the respondent-bank was not entertained by the DRT, Jaipur, in view of the order passed by the Division Bench and accordingly the original application along with the documents was returned back to the respondent-bank.
This Court finds that on 16.10.2019 after Notification was issued the Registrar directed all such cases to be listed before the Presiding Officer for further orders. The Presiding Officer of DRT on 22.10.2019 had taken up the case/original application and earlier order of return of O.A. was recalled.
This Court finds that if any litigation was pending in respect of Notification issued by the Union of India whereby pecuniary jurisdiction was prescribed/enhanced and later on challenge to the said Notification came to be dismissed, the power of Debt Recovery Tribunal, was required to be exercised as per the Notification dated 01.08.2019 issued by the Ministry of Finance.
The submission of learned counsel for the petitioners that DRT had become functus-officio after return of O.A. suffice it to say by this Court that if the Notification of the Union of India was upheld and matters were required to be dealt with as per pecuniary jurisdiction prescribed by the DRT, the DRT has not (Downloaded on 05/03/2022 at 09:00:11 PM) (6 of 6) [CW-9341/2021] committed any error by taking up those original applications which were not entertained due to pendency of the cases before the High Court.
A perusal of sub-section (25) of Section 19 of the Act of 1993 also provides that the Tribunal can pass orders and give directions which may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
This Court finds that if proper notice is given to a party concerned about revival of proceedings and the party concerned does not respond back, such act of the party, who received notice, will not preclude the Tribunal to proceed further and the principles of natural justice have been followed.
The submission of the learned counsel for the petitioners that since issue of jurisdiction is involved, as such petitioners were not bound to respond back, this Court will not accept the said submission and even if some objection is raised about jurisdiction, the party concerned is always at liberty to raise all objections including the objection of jurisdiction before the authority who has issued such notice.
This Court finds that the petitioners have got statutory alternative remedy to challenge the orders which have been passed by the DRT and the petition cannot be entertained by this Court.
The petition stands dismissed accordingly. The petitioners are always free to avail the statutory remedy provided under the law.
(ASHOK KUMAR GAUR),J RAJAT KUMAR/s-156 (Downloaded on 05/03/2022 at 09:00:11 PM) Powered by TCPDF (www.tcpdf.org)