M/S Pat International And Others vs Indian Overseas Bank And Another
2021 Latest Caselaw 3470 Cal

AD. 72.
June 29, 2021.
 MNS.

                                    C. O. No. 1203 of 2021
                                   (Via video conference)

                              M/s Pat International and others
                                            Vs.
                            Indian Overseas Bank and another


                        Mr. Sabyasachi Chaudhuri,
                        Mr. Chanchal Kumar Dutta,
                        Mr. Probhat Sil,
                        Ms. Krishna Mukherjee

                                        ... for the petitioners.

                        Mr. Debajyoti Basu,
                        Ms. Reshmi Mukherjee

                               ...for the opposite parties.

                        Affidavit-of-service filed in Court today be

                 taken on record.

                        Both      the    contesting     parties    are

                 represented through counsel.

                        The present application under Article 227

                 of the Constitution of India has been preferred

                 against a judgement passed by the Debts

                 Recovery Tribunal 1, Kolkata, thereby dismissing

                 the main matter itself, that is, SA No. 232 of 2017.

                        Learned     counsel     for   the   petitioners

                 contends that the relevant date, on which the

                 impugned order dated June 9, 2021 was passed,
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was merely fixed for passing orders on the

connected interlocutory applications in the SA.

         Counsel places reliance on a photocopy of

the certified copy of the order of the Tribunal

dated April 1, 2021, where it is specifically

recorded by the Tribunal that the learned

advocates for the parties were present. It is not

even clear whether there was any hearing given

to learned counsel appearing for the parties, at

least from the order dated April 1, 2021 itself.

         Be that as it may, the tribunal reserved the

"matter" for order. Evidently, since the "matter",

which was taken up on that date, was an

interlocutory application, which was yet to be

decided, although one of the other interlocutory

applications being IA 992 of 2021 had been

disposed of. Since judgment was reserved

specifically in IA 993 of 2021, the tribunal had no

business on June 9, 2021 to dispose of the SA

itself, without even hearing the same on merits.

         Surprisingly, the tribunal itself, in the

impugned order, records at the outset that the

'I.A's   were    taken    into   consideration     and

connected pleadings as well.          However, the

presiding officer of the Debts Recovery Tribunal

realized, in the course of adjudication (passing
                          3




orders) on the interlocutory application, that there

was a previous order of the appellate tribunal for

expeditious hearing and disposal of the main

matter.     Such   observation    is   reflected   in

paragraph no. 7 of the impugned order.

       Thereafter, all on a sudden, the tribunal

attributed certain arguments to learned senior

counsel for the applicant in paragraph no. 8 of the

impugned order, which ex facie were in favour of

the respondent-bank and, as such, could not

have been contended by the present petitioner.

This gives a wrong picture that the applicant was

heard, although only counsel for the bank had

argued. Such "typographical" errors are found

galore in the order. Even in paragraph no. 5, the

tribunal records that learned senior counsel

appearing for the respondent, that is, the bank,

had assailed the SARFAESI actions on numerous

grounds, which was also evidently an error, since

the petitioners, and not the bank, had assailed

such actions. In view of the previous error, seen

in conjunction with the subsequent observation

that learned counsel for the applicant was heard,

made in paragraph no. 8, there cannot be any

shade of doubt that the present petitioners were

not even heard on the merits of the main matter.

That apart, as mentioned earlier, there is

substance in the submission of learned counsel

for the petitioners that the date was fixed only for

passing orders on the interlocutory application, as

also borne out by the narrative recorded in the

impugned order itself.

As such, barely touching on the merits of

the case, learned counsel for the petitioners

submits that there was palpable jurisdictional

error on the part of the tribunal.

To such contention, learned counsel for

the respondent-bank contends that the

application under Article 227 of the Constitution

ought not to be entertained in view of an equally

efficacious alternative remedy being available in

the form of an appeal and relies on the relevant

sections of the SARFAESI Act for such purpose.

It is contended that the grievances raised in the

present application under Article 227 of the

Constitution could very well have been agitated

before the appellate forum.

That apart, learned counsel for the

opposite parties relies on paragraph no. 7 of the

impugned order to indicate that the SA itself had

been taken up for hearing and disposal.

However, such contentions of the opposite

parties pale into insignificance in view of the prior

observations made in the impugned order itself

as regards the scope of the adjudication being

restricted to the interlocutory application. Even

the previous order dated April 1, 2021

corroborates the same proposition and shows

that the interlocutory application was the "matter",

which was reserved for order (although

surprisingly there is no reflection of learned

counsel being heard on the interlocutory

application on such date as well).

As far as the observation made in

paragraph no. 7 of the impugned order is

concerned, it is incredible for any judicial or

quasi-judicial authority and/or tribunal constituted

under any law to have committed such a patent

error in following blindly the direction of the

appellate tribunal, which was, by nature, only in

terrorem, by disposing of the main SA itself

without giving any opportunity to the parties to

contend on the merits of the same and/or even

taking care to fix a specific date for such hearing.

Hence, on the face of the impugned order,

the same was passed palpably without

jurisdiction, thereby causing a gross miscarriage

of justice in so far as the main matter, that is the

SA 232 of 2017 itself, was dismissed on merits,

while passing orders on the interlocutory

applications, on a flagrant violation of a cardinal

principle of natural justice, that is, audi alterem

partem.

That apart, such orders ought to be

deprecated for the mere carelessness involved

and should be set aside at the first blush. The

presiding officer-in-question ought to be more

cautious in disposing of matters, merely due to

existence of a previous direction for expeditious

hearing, on their merits, without fixing any date

for hearing learned counsel of parties and/or

actually hearing counsel on merits.

Such a modus operandi is stringently

deprecated and it is expected that the presiding

officer concerned shall not repeat the same in

future.

In view of the observations made above,

C. O. No. 1203 of 2021 is allowed on contest,

thereby setting aside the impugned order dated

June 9, 2021 passed in SA 232 of 2017 under the

superintending power conferred by Article 227 of

the Constitution on the High Courts, with a

caution to the presiding officer, who passed the

impugned order, to be careful in future.

In view of the conduct of SA 232 of 2017,

this court cannot repose any faith on the

presiding officer-in-question, at least as far as the

hearing of SA 232 of 2017 is concerned.

Accordingly, the said matter,that is SA 232

of 2017 now ought to be heard and disposed of,

along with the interlocutory applications in

connection therewith which were pending on the

date of the impugned order, which revive due to

reversal of the impugned order, before a different

presiding officer, that is the only other available

bench at present functioning in the Debts

Recovery Tribunal, Kolkata. The presiding officer

of the said other bench, where SA 232 of 2017

along with connected interlocutory applications

are being remanded, shall endeavour to dispose

of the matter as expeditiously as the business of

the said bench permits.

Liberty is granted to the parties to apply for

appropriate interim orders before the remandee

tribunal. If any such application is taken out on

urgent basis, the said presiding officer shall

dispose of such interlocutory application as

expeditiously as possible, preferably within a

month from the date of communication of this

order as well as transmission of the records to the

said bench.

There will be no order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)