Bombay High Court
Prabhakarrao Vitthalrao Mahajan ... vs State Bank Of Hyderabad Through ... on 15 December, 2016
Bench: R.M. Borde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12170 OF 2016
1. Prabhakarrao s/o Vitthalrao Mahajan,
Age : 58 years, Occu. Business,
Proprietor M/s New Shriram Fibers,
R/o Gut No. 978, Village and
Post Phulambri, Tq. Phulambri,
District Aurangabad
2. Vitthalrao s/o Uttamrao Mahajan,
Age : 85 years, Occu. Agril.,
R/o 91, Deshmukh Galli,
Village and Post Phulambri,
Tq. Phulambri, Dist. Aurangabad
3. Rukhminibai w/o Vitthalrao Mahajan,
Age : 83 years, Occu. Household,
R/o 91, Deshmukh Galli,
Village and Post Phulambri,
Tq. Phulambri, Dist. Aurangabad PETITIONERS
VERSUS
1. State Bank of Hyderabad,
through its Authorized Officer,
Phulambri Branch, Tq. Phulambri,
District Aurangabad
2. Branch Manager,
State Bank of Hyderabad,
Phulambri Branch, Tq. Phulambri,
District Aurangabad RESPONDENTS
----
Mr. V.J. Dixit, Senior Advocate instructed by and with
Mr. Sushant V. Dixit, Advocate for the petitioners
Mr. S.R. Deshpande, Advocate for the respondents
----
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CORAM : R.M. BORDE AND
SANGITRAO S. PATIL, JJ.
DATE : 15th December, 2016
ORAL JUDGMENT (PER : R.M. BORDE, J.) :
Heard.
2. Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is taken up for final hearing and disposal at
the stage of admission.
3. The petitioner is objecting to the order dated
19th November, 2016, passed by the Debts Recovery
Tribunal, Aurangabad below application (Exhibit-16) in
Securitization Appeal No. 111 of 2015.
4. The petitioners have presented application
before the Debts Recovery Tribunal, which is pending. In
the pending proceedings, an application seeking
amendment was presented which came to be allowed. During
the pendency of the proceedings, the District Magistrate
passed an order directing the petitioners to hand over
the possession of the secured assets to the
respondent/Bank. The petitioners sought amendment with
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a view to challenge the order passed by the District
Magistrate during pendency of the proceedings by
presenting an application at Exhibit-16. The application
has been opposed by the respondent/Bank by presenting
reply at Exhibit-20. It is the contention of the
respondent/Bank that since the provisions of the Code of
Civil Procedure are specifically excluded in Recovery of
Debts Due to Banks and Financial Institutions Act, 1993
(for short, "RDDB Act") and as per the Securitization
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (for short, "SARFAESI
Act"), an application filed under section 17 of the Act
has to be dealt with and disposed of as per the
procedure prescribed for disposal of the applications
under section 19 of the RDDB Act. As such, the
application seeking amendment to the pleadings need not
be entertained.
5. The Debts Recovery Tribunal accepted the
objections raised by the respondent/Bank and proceeded
to reject the application tendered by the petitioner at
Exhibit-16.
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6. We have perused the order passed by the Debts
Recovery Tribunal. Even if application of the
provisions of the Code of Civil Procedure is
specifically excluded in RDDB Act, the principles
governing consideration of application seeking amendment
to the pleadings are not at all excluded and the Debts
Recovery Tribunal is not estopped from considering
successive applications for amendment of pleadings. The
petitioners are justified in tendering application
seeking amendment to the pleadings in view of the
development which occurred during the pendency of the
proceedings. The challenge raised by the petitioners
can be conveniently considered in the pending
proceedings since the order passed by the District
Magistrate is in continuation of the proceeding and
instead of driving the petitioners to present fresh
proceeding, to impeach the orders passed by the District
Magistrate, they can be permitted to amend the pleadings
and challenge the order in the pending proceeding, which
is necessary for final and effective adjudication of the
controversy arising between the parties.
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7. The objection raised by the respondent/Bank in
respect of payment of separate court fees for raising
challenge to the order passed by the District Magistrate
deserves to be looked into. It would be the domain of
the Registrar of the Debts Recovery Tribunal to consider
the issue in respect of payment of separate court fees
concerning the challenge raised by the petitioners by
way of amendment and the Registrar shall pass
appropriate orders in respect of payment of additional
court fees after considering the submissions of the
petitioners and the respondent/Bank. In the result, the
Writ Petition deserves to be allowed with the following
directions.
8. The order dated 19th November, 2016, passed by
the Debts Recovery Tribunal below Exhibit-16 in
Securitization Appeal No. 111 of 2015 is quashed and set
aside and the application tendered by the petitioners
below Exhibit-16 shall be deemed to have been allowed,
subject to the directions in respect of computation of
and payment of court fees as recorded hereinabove. The
Debts Recovery Tribunal shall dispose of the pending
proceeding expeditiously, preferably within a period of
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four months from today.
9. Rule is made absolute in the above terms.
There shall be no order as to costs.
[SANGITRAO S. PATIL] [R.M. BORDE]
JUDGE JUDGE
npj/wp12170-2016
